the FEE Simple - The Journal of the Virginia State Bar ... · grew into the 21st Annual Advanced Real Estate Seminar held this past March in Williamsburg. ... in turn, allow attendees

The Journal of theVirginia State BarReal Property Section

http: / /www.vsb.org/s i te/sect ions/realproperty

Stephen C. Gregory, EditorDerek Van De Walle, Student Editorial Assistant

Kay M. Creasman2017 Traver Scholar Award Recipient

Spring 2017Vol. XXXVIII, No. 1

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Vol. XXXVIII, No. 1 i Spring 2017

TABLE OF CONTENTS

Chair’s Column ............................................................................................................................................. 1 F. Lewis Biggs From the Cluttered Desk (and Mind) of the Editor...................................................................................... 3 Stephen C. Gregory 2017 Virginia General Assembly: Selected Real Estate Legislation Bill List ............................................... 5 Jeremy R. Moss 2017 Virginia General Assembly Report: Real Estate Legislation ............................................................. 28 Jeremy R. Moss Virginia Real Estate Case Law Update (Selected Cases) ........................................................................... 43 Otto Konrad and Ray W. King Parrish v. Fannie Mae: Broadening the Meaning of “Trying Title” ........................................................... 75 Kathryn Byler and Bryan S. Peeples Minutes of the Board of Governors and Committee Reports:

Winter 2017 Meeting of the Board of Governors and Area Representatives ................................ 79 Kay M. Creasman, Secretary Fall 2016 Meeting of the Board of Governors and Area Representatives ..................................... 94 Kay M. Creasman, Secretary

Board of Governors ................................................................................................................................... 116 Area Representatives and Honorary Representatives ............................................................................... 119 Committee Chairpersons and Other Section Contacts .............................................................................. 127

Subject Index:

November 1987-Spring 2017 ........ http://www.vsb.org/docs/sections/realproperty/subjectindex.pdf

The FEE SIMPLE is published semiannually for distribution to members of the Real Property Section of the Virginia State Bar. Anyone interested in publishing an article in the FEE SIMPLE is invited to contact the Editors. Articles should be submitted by email as Microsoft Word documents. Your submission will also be your consent to the posting of the article on the Real Property Section website, http://www.vsb.org/site/sections/realproperty/ newsletters. The FEE SIMPLE has the authority to edit materials submitted for publication. Authors are responsible for the accuracy of the content of their article(s) in the FEE SIMPLE and the views expressed in them are solely the views of the author(s).

The Board of Governors gratefully acknowledges the dedication and the hard work of the Assistant to the Editors, Felicia A. Burton ((757) 221-3813, (email) [email protected]), of the College of William and Mary School of Law.

Editor Stephen C. Gregory, Esq. 1334 Morningside Drive Charleston, WV. 25314 (703) 850-1945 (mobile) Email: [email protected]

Student Editorial Assistant Derek Van De Walle 3819 E. Steeplechase Way, Apt. C Williamsburg, VA 23188 (586) 850-0351 Email: [email protected]

FALL SUBMISSION DEADLINE: FRIDAY, OCTOBER 6, 2017

http://www.vsb.org/docs/sections/realproperty/subjectindex.pdf

http://www.vsb.org/site/sections/realproperty/newsletters


Vol. XXXVIII, No. 1 ii Spring 2017

Real Property Section member resources website login:

User name: realpropertymember

Password: Nwj5823

Visit the section web site at

http://www.vsb.org/docs/sections/realproperty/rpmembershipapplication_1.pdf

for the Real Property Section Membership form

and


for articles from the FEE SIMPLE and a whole lot more!

The next meeting of the Board of Governors of the Real Property Section

of the Virginia State Bar will be held on

Friday, June 16, 2017, at 12:00 pm

Oceanaire Resort, 3421 Atlantic Avenue, Virginia Beach.

http://www.vsb.org/docs/sections/realproperty/rpmembershipapplication_1.pdf


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Vol. XXXVIII, No. 1 1 Spring 2017

CHAIR’S MESSAGE

by F. Lewis Biggs*

It seems like only yesterday when our Section’s Programs Committee, with many others, was brainstorming in Charlottesville about MCLE topic ideas. That was in September, and those discussions grew into the 21st Annual Advanced Real Estate Seminar held this past March in Williamsburg. Speakers there delved into cutting-edge topics, including land use proffers, AirBnBs, the law of roadways, REITs, and wineries and breweries, to name a few. The attendance was robust, equaling our highest on record.

The MCLE discussions also developed our upcoming 35th Annual Real Estate Practice Seminar, held live annually in May with video replays later in the year. Speakers at the 35th will deliver legislative and case law updates, cover ethical issues related to cybersecurity, and lecture on lien enforcement against real estate and elder law topics involving real estate.

Some may wonder why we go to all of the effort to develop these seminars when lawyers can purchase on-line MCLE bundles for $69 (or less if they hold out for the “special promo”). I have an opinion on that topic, and I will take this opportunity share it.

At our Advanced Seminar this year, I learned scores of practice tips and other information directly relevant and useful to my commercial real estate practice. I cannot say that every topic directly pertained to my practice, but most did. Even the outliers were close. Through active participation in the Section, I also joined in efforts to select and refine topics, recruit speakers, and develop content. At every step of the way, I gained knowledge that will help me to deliver better legal services and greater value to my clients.

It’s not really fair to compare that to your typical $69 on-line MCLE bundle, but doing so drives home my point. The $69 bundle is cheap, and I like that. But the gross investment is $69 plus the hours I spend watching (mostly) off-topic MCLEs. My time is precious to me. Am I getting anything other than compliance for the investment? With the typical $69 bundle, I can learn and retain (for about 4 seconds) information about topics such as electronic retention of healthcare records, prosecuting immigration appeals, employee leaves of absence, and drafting software licenses. There is nothing wrong with those topics, and some of the speakers are quite good; but no lawyer’s practice is likely to span more than one or two of the practice areas usually included. For my practice, I have found nearly all to be irrelevant.

Our Section develops the Advanced and Annual Practice Seminars to provide meaningful continuing legal education, which should, in turn, allow attendees to deliver better legal services and greater value to clients. I am extremely proud of the work done by our Programs Committee, Virginia CLE®, and all others who participated in this year’s programs. Thank you!

I invite you to contribute to next year’s programs. Relevant, practice-specific MCLE seminars don’t just self-propagate. They start with ideas, many of which come from the minds and the day-to-day practices of our Section members. The ideas then require nurturing, expertise, and planning in order to develop them into seminars. The work on next year’s seminars will begin in earnest at a brainstorming session immediately following the Board’s meeting on September 15, 2017. Please join us for that either in person or by conference call bridge.

Much of my focus this year was on the transition of Virginia CLE® liaisons. Tracy Winn Banks, our current Virginia CLE® liaison, came in mid-year, replacing Nancy Kern, who retired after thirteen

* F. Lewis. Biggs is a member of the firm of Kepley Broscious & Biggs, PLC in Richmond. His

practice focuses on nearly all aspects of commercial real estate and real estate finance, including complex transactions, real estate due diligence, resolving title problems, problem real estate loans, workouts, and commercial foreclosures. Mr. Biggs graduated magna cum laude from Hampden-Sydney College in 1991 and received his Juris Doctor degree from Washington and Lee University School of Law in 1996.

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years. Taking over a job from someone who filled the role for thirteen years is difficult. Taking over the planning and execution of numerous complex legal seminars, all in various stages of completion (or incompletion), is an astounding challenge.

As soon as I took office, veterans in our Section wisely urged me to meet with Ms. Kern and promptly focus on the transition. At the time, I did not comprehend the gravity of the transition. I do now, and I am glad I heeded that advice. We cannot yet declare a victory, but I think it is fair to say that the transition has gone smoothly so far. I know Ms. Banks to be a good listener, a hard worker, and a quick study. Best of all, she applies those traits with a kind demeanor and a great sense of humor. I am confident that Ms. Banks will play a key role in the future success of our joint programs, and I look forward to a continued friendship with her. Thank you, Tracy!

I will also single out Steve Gregory for praise. Mr. Gregory is Editor of The Fee Simple and a member of the Section’s Board of Governors. The Fee Simple is a valuable resource for Section members and other real estate practitioners. My focus this year was mostly on other things–that is, budget and Virginia CLE® – and The Fee Simple team was mercifully self-sustaining. (Mr. Gregory is likely grateful for my lack of meddling). Thank you, Steve and all others who contributed to The Fee Simple this year! Please help make Mr. Gregory’s job easier by continuing to solicit and submit topic ideas and articles. They are always needed and appreciated.

Finally, I must single out Dolly Shaffner, our Virginia State Bar liaison, for praise. Our budget was a bit of a mess. Ms. Shaffner was extremely helpful in getting us through that, and assisted on many other fronts as well. I have learned that Ms. Shaffner is an expert at planning events, and my tip to future officers is this–if you find yourself dealing with anything related to event planning, get Ms. Shaffner’s help (or, better yet, see if she will take the lead). Thank you, Dolly!

As for Section governance and policy, I will continue to press for an increase in committee participation, and I suspect that officers succeeding me will do the same. The Section’s Bylaws, as well as organizational practicalities, clearly mandate that the bulk of substantive discussions occur at the committee level. The Bylaws also charge Area Representatives with three duties, which entail (1) encouraging membership, (2) soliciting input and commenting on legal issues, and (3) providing material for publications and programs. Active committee participation should satisfy at least two of those duties. I ask all Area Representatives and all Board Members not currently on a committee to join one unless they are contributing in some other substantive way beyond merely attending Board meetings.

In furtherance of this policy, I have asked Kay Creasman, the Section’s Secretary Treasurer, to reach out to each Area Representative not serving on a committee to encourage him or her to do so. If you are willing to serve on a committee, please contact a committee chair or Ms. Creasman. For contact information, please see the directory later in this publication.

In order to encourage younger members to become more active, I will also be reaching out to committee chairs to discuss and consider whether now is the appropriate time to rotate those leadership positions.

Section involvement has made my practice and profession more fulfilling; it has increased my expertise and knowledge, making me a better lawyer; and it has introduced me to a community overwhelmingly motivated to provide the highest quality of legal services to clients. I am extremely grateful for the connections I have made through this Section, and I look forward to maintaining and growing many friendships.

Thank you for the opportunity to lead this Section and to be a part of this community. Thank you for your support and contributions over the past year!

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FROM THE CLUTTERED DESK—AND MIND—OF THE EDITOR

by Stephen C. Gregory

As this is being written, the United States is slightly more than two months into the Donald J. Trump presidency. In that time, and in the months leading up to his inauguration, President Trump has demonstrated a singular contempt for the law and those who would uphold and interpret it. He has, in no particular order, questioned the impartiality of a sitting judge based upon his heritage, disparaged a judge with whose ruling he disagreed, and, perhaps most egregiously, called for amending and loosening libel laws to allow him to sue news outlets that dare to portray him in a less than favorable light. In addition, he has flaunted laws against nepotism and conflicts of interest, calling to mind the statement of former President Richard M. Nixon when he said, “[i]f the president does it, it’s not illegal.”

There is a reason Dick the Butcher said “First thing we do, let’s kill all the lawyers.” The law, and lawyers, are the only impediments to chaos and—in some cases—totalitarian dictatorship. Presidents have disagreed with judges before, but never to the extent of belittling the person and the institution. This is dangerous, and we as guardians of the law must stand strong against the tyranny of those who would threaten the core of our Republic. Moreover, we must do so loudly and in one voice, for in no other way can we protect our rights and liberties.

At the close of the Constitutional Convention, a woman asked Benjamin Franklin, “Well, Doctor, what have we got—a Republic or a monarchy?” Franklin replied, “A republic—if you can keep it.”

When the threat comes from the head of the government, we are perilously close to not keeping it. ____________________________________________________________________________________

Congratulations to Kay Creasman of Old Republic Title, the 2017 Traver Scholar of the Year. Kay has served the industry for many years in multiple roles, and is an accomplished underwriter and teacher. She has served the last year as Secretary/Treasurer of the Real Property Section, and is likely its rising vice chair for the 2017-18 year. The Traver is a well-deserved award for our distinguished colleague. _____________________________________________________________________________________

Jessica Selway, the Moderator of the Round Table (which has appeared in this issue regularly), has moved from the Commonwealth and is no longer available to take on that role. If any of you would like to ascend to the position, or know of someone who would, please notify the Editor. We would like to continue the feature. _____________________________________________________________________________________

In the last issue, we noted the departure of long-time Virginia CLE coordinator Nancy Kern. We are now pleased to welcome to the post Tracy Winn Banks, whose first experience with the Real Property Section was at the Advanced Seminar in Williamsburg. (She survived.) Tracy is open to, and has requested, input on topics, dates, and locations of future CLEs. Send an email to [email protected]. _____________________________________________________________________________________

Also new to this issue is Jeremy R. Moss of Vandeventer Black. Jeremy has kindly agreed to provide the legislative updates which had been the province of Pia Trigiani. Pia’s schedule unfortunately precluded her from being able to continue with her contribution, but we are grateful that Jeremy has volunteered. It is a somewhat daunting task, and the time and effort is greatly appreciated. ____________________________________________________________________________________

It’s difficult to put together a magazine of this kind because articles are often hard to come by. One reason is that the law changes slowly, and new topics arise with no particular regularity. Another reason, of course, is that our authors are volunteers; the devotion their time and resources to publish here has always been given graciously, but putting together an article is tedious. We thank them all, and invite our

mailto:[email protected]

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readers to contribute. We have opened our portals to factual articles or opinions on our chosen profession.

This is YOUR magazine. Help us make it better.

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2017 VIRGINIA GENERAL ASSEMBLY: SELECTED REAL ESTATE LEGISLATION BILL LIST

Compiled by Jeremy R. Moss*

The following bills relate to real estate, real estate financing, taxation and/or land use. A

report of the 2017 General Assembly session follows with in-depth summaries of most of the bills listed below. Some of the bills included in this list have been omitted from the report because they have only a tacit connection to real estate or because the summaries provided below (from the Virginia Division of Legislative Services) sufficiently identifies the nature and scope of the bill.

Full text of the bills may be found at https://lis.virginia.gov/cgi-bin/legp604.exe?171+men+BIL.

Bill Number Patron Bill Description

BUILDING CODE

HB1587 Delegate Jeffrey L. Campbell Uniform Statewide Building Code; security of

certain records. [Amends and reenacts § 36-105.3 of the Code of Virginia.]

HB 2203 Delegate Luke E. Torian Uniform Statewide Building Code; Department of Housing and Community Development shall consider including in current revision of Code a provision designed to ensure that localities provide appropriate notice to residents of manufactured home parks of any Code violations, report. [An Act to direct the Department of Housing and Community Development to consider revision to the Uniform Statewide Building Code, relating to notice to residents of manufactured home parks of building code violations by the park owner].

SB 919 Senator John S. Edwards Removal of blight; if locality, through its own agents or employees, removes, repairs, or secures any building, etc., after complying with certain notice provisions, or as otherwise permitted under Virginia Uniform Statewide Building Code in an event of an emergency, cost or expenses thereof shall be chargeable to and paid by owners

* Jeremy R. Moss is Of Counsel with Vandeventer Black LLP in Norfolk, Virginia, concentrating

his practice on the representation of common interest community associations and other businesses. Mr. Moss has been active in legislative matters throughout most of his practice, previously serving as part of the team providing legislative counsel (in Virginia) to an international membership organization related to common interest community associations. Mr. Moss is the Chair of the Virginia Legislative Action Committee of Community Associations Institute, Secretary/Treasurer of the Virginia Bar Association Real Estate Section Council, Chair of the Virginia State Bar Real Property Section Committee on Common Interest Communities, and a member of the Foundation for Community Association Research. Mr. Moss is a fellow of the College of Community Association Lawyers, and is the youngest fellow ever inducted into the College.

https://lis.virginia.gov/cgi-bin/legp604.exe?171+men+BIL

http://lis.virginia.gov/cgi-bin/legp604.exe?171+sum+HB1587

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of such property. [Amends and reenacts § 15.2-906 of the Code of Virginia.]

BUSINESS ENTITIES

SB 1309 Senator Thomas K. Norment, Jr. Transacting business under assumed name; filing of certificate with clerk of State Corporation Commission, certificate of release, penalty for signing false certificate, provisions shall become effective on May 1, 2019, provisions shall be applied prospectively only, shall not affect validity of any filing made, etc. [Amends and reenacts §§ 59.1-69, 59.1-70, and 59.1-74 of the Code of Virginia and amends the Code of Virginia by adding sections numbered 59.1-70.1 and 59.1-75.1.]

CEMETERIES AND GRAVEYARDS HB 1505 Delegate T. Scott Garrett Perpetual care trust funds; method of distribution.

[Amends and reenacts §§ 54.1-2322 and 54.1-2324 of the Code of Virginia.]

HB 1547 Delegate Delores L. McQuinn Historical African American cemeteries and graves; distribution of funds appropriated for preservation of two cemeteries. [Amends and reenacts § 2.2-1505 of the Code of Virginia and amends the Code of Virginia by adding a section numbered 10.1-2211.2.]

SB 891 Senator A. Benton “Ben” Chafin Perpetual care trust funds; method of distribution. [Amends and reenacts §§ 54.1-2322 and 54.1-2324 of the Code of Virginia.]

CIVIL REMEDIES AND PROCEDURE HB 1568 Delegate Robert D. Orrock, Sr. Child care providers; applicant criminal history

background checks, penalty, sunset date, provision of federal Child Care and Development Block Grant Act of 2014 establishing requirements for national fingerprint-based criminal history background checks. [Amends and reenacts §§ 63.2-1720 through 63.2-1721.1, as they shall become effective, 63.2-1722, 63.2-1724, and 63.2-1725 of the Code of Virginia.]

HB 1590 Delegate Jeffrey L. Campbell Law-enforcement officers and firefighters; common-law doctrine known as the fireman's rule shall not be a defense to certain claims. [Amends and reenacts § 8.01-226 of the Code of Virginia.]

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HB 1630 Delegate Gregory D. Habeeb Clerk of circuit court; report of money kept by clerk, availability of annual report to Auditor of Public Accounts. [Amends and reenacts §§ 8.01-600, 17.1-124, and 17.1-125 of the Code of Virginia.]

HB 1811 Delegate G. Manoli Loupassi Unlawful detainer; initial hearings on a summons, amendments of amount requested on summons, immediate issuance of writs of possession in certain case judgments, etc. [Amends and reenacts §§ 8.01-126, 8.01-128, 8.01-129, and 16.1-94.01 of the Code of Virginia.]

COMMUNITY ASSOCIATIONS HB 1475 Delegate Robert D. Orrock, Sr. Common Interest Community Board;

information on covenants, association disclosure packets, purchase contract for a lot within an association is a legally binding document once signed by purchaser. [Amends and reenacts § 54.1-2350 of the Code of Virginia.]

HB 1554 Delegate David L. Bulova Property Owners' Association Act; amendment of declaration. [Amends and reenacts § 55-515.1 of the Code of Virginia.]

HB 2045 Delegate Jackson Miller Property Owners' Association Act; Common Interest Community Board may receive a complaint directly from any person aggrieved by an association's failure to deliver a resale certificate or disclosure packet within required time period, designation of authorized representative by seller, association disclosure packet. [Amends and reenacts §§ 54.1-2349, 55-509.4, and 55-509.6 of the Code of Virginia].

HB 2274 Delegate D.W. Marshall Condominium Act; Common Interest Community Board may receive a complaint directly from any person aggrieved by an association's failure to deliver a resale certificate or disclosure packet within required time period, resale by purchaser, designation of authorized representative. [Amends and reenacts §§ 54.1-2349, 55-79.97, and 55-79.97:1 of the Code of Virginia].

SB 1231 Senator William M. Stanley Jr. Property Owners' Association Act; Common Interest Community Board may receive a complaint directly from any person aggrieved by an association's failure to deliver a resale certificate or disclosure packet within required time period, designation of authorized representative by seller, association disclosure

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packet. [Amends and reenacts §§ 54.1-2349, 55-509.4, and 55-509.6 of the Code of Virginia.]

SB 1255 Senator Bill R. DeSteph, Jr. Condominium Act; Common Interest Community Board may receive a complaint directly from any person aggrieved by an association's failure to deliver a resale certificate or disclosure packet within required time period, resale by purchaser, designation of authorized representative. [Amends and reenacts §§ 54.1-2349, 55-79.97, and 55-79.97:1 of the Code of Virginia.]

CONDEMNATION AND EMINENT DOMAIN HB 2024 Delegate Nicholas J. Freitas Condemnation powers and proceedings; notice to

owner or tenant between 30 and 45 days prior to date on which any certificate will be filed or recorded, etc. [Amends and reenacts §§ 25.1-306 and 33.2-1020 of the Code of Virginia.]

SB 927 Senator J. Chapman “Chap” Petersen Eminent domain; timing for initiation of "quick-take" condemnation procedure and petition for determination of just compensation. [Amends and reenacts §§ 25.1-313 and 25.1-318 of the Code of Virginia.]

SB 1153 Senator Mark D. Obenshain Inverse condemnation proceeding; reimbursement of owner's costs, judgment proceedings filed prior to July 1, 2017. [Amends and reenacts § 25.1-420 of the Code of Virginia.]

SB 1421 Senator T. Montgomery “Monty” Mason Condemnation proceeding; interest on the amount of award, interest shall accrue on excess amount at not less than judgment rate of interest. [Amends and reenacts §§ 25.1-244, 25.1-315, and 33.2-1026 of the Code of Virginia.]

CONSERVATION, LAND PRESERVATION, HISTORIC REHABILITATION AND ENVIRONMENT

HB 1454 Delegate Terry L. Austin James River; designating portion in Botetourt and

Rockbridge Counties, including Towns of Buchanan and Glasgow, from its origination at confluence of Jackson and Cowpasture Rivers to Rockbridge-Amhurst-Bedford County line a component of Virginia Scenic Rivers System. [Amends and reenacts § 10.1-413 of the Code of Virginia.]

HB 1509 Delegate R. Lee Ware Mineral mines reclamation; bonds and liens. [Amends and reenacts §§ 45.1-183, 45.1-185, 45.1-197.8, 45.1-197.10, 45.1-197.14, and 45.1-197.18 of the Code of Virginia and to amends the

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Code of Virginia by adding sections numbered 45.1-186.3 through 45.1-186.8.]

HB 1600 Delegate C. Matthew Fariss Landfills; Department of Environmental Quality and Region 2000 Services Authority shall continue to work together to reduce odor issues at landfill operated by Authority in Campbell County, report. [An Act to direct coordination regarding landfill odor reduction at landfill in Campbell County.]

HB 1793 Delegate C. Matthew Fariss Burn ban; exception for frost or freeze protection of orchard or vineyard. [Amends and reenacts § 10.1-1142 of the Code of Virginia.]

HB 2311

Delegate M. Kirkland “Kirk” Cox Nutrient Offset Fund; Director of Department of Environmental Quality to use certain funds to purchase nutrient credits or allocations from point or nonpoint sources, etc., distribution of moneys from Fund, Director shall consider recommendations of Secretary of Commerce and Trade. [Amends and reenacts § 10.1-2128.2 of the Code of Virginia.]

HB 2460 Delegate Robert S. Bloxom, Jr. Historic rehabilitation; for taxable years beginning on and after January 1, 2017, but before January 1, 2019, amount of tax credits that may be claimed by each taxpayer shall not exceed $5 million in any taxable year. [Amends and reenacts § 58.1-339.2 of the Code of Virginia.]

SB 963 Senator Emmett W. Hanger, Jr. Land preservation; extends to taxable year 2017 limit on amount that a taxpayer may claim per year under tax credit. [Amends and reenacts § 58.1-512 of the Code of Virginia.]

SB 1034 Senator Janet D. Howell Historic rehabilitation; for taxable years beginning on and after January 1, 2017, but before January 1, 2019, amount of tax credits that may be claimed by each taxpayer shall not exceed $5 million in any taxable year. [Amends and reenacts § 58.1-339.2 of the Code of Virginia.]

SB 1196 Senator R. Creigh Deeds James River; designating portion in Botetourt and Rockbridge Counties, including Towns of Buchanan and Glasgow, from its origination at confluence of Jackson and Cowpasture Rivers to Rockbridge-Amhurst-Bedford County line a component of Virginia Scenic Rivers System. [Amends and reenacts § 10.1-413 of the Code of Virginia.]

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SB 1286 Senator Mark D. Obenshain Land preservation tax credits; withholding tax of nonresident owners. [Amends and reenacts § 58.1-513 of the Code of Virginia.]

SB 1395 Senator Frank W. Wagner Small renewable energy projects; eligibility for permits by rule, jurisdiction of State Corporation Commission regarding a utility that is not eligible for a permit. [Amends and reenacts §§ 10.1-1197.5, 10.1-1197.6, and 10.1-1197.8 of the Code of Virginia.]

SB 1398 Senator Scott A. Surovell Coal combustion residuals unit; units located within Chesapeake Bay watershed, assessments required, report, closure permit. [An Act to require evaluation of closure of coal combustion residuals units.]

CONTRACTS HB 1472 Delegate L. Scott Lingamfelter Conflict of Interests Act, State and Local

Government; prohibited contracts, provisions shall apply to contracts entered into on and after July 1, 2017, contracts entered into by an officer or employee or an immediate family member of such officer or employee with a soil and water conservation district, to participate in a cost-share program, etc., prior to effective date of this act. [Amends and reenacts § 2.2-3110 of the Code of Virginia.]

HB 1693 Delegate Christopher E. Collins Virginia Public Procurement Act; contracts for architectural and engineering services relating to multiple construction projects, maximum fee for any single project is $150,000. [Amends and reenacts § 2.2-4303.1 of the Code of Virginia.]

HB 1712 Delegate J. Randall Minchew Energy performance-based contract; public body authorized to purchase energy conservation or operational efficiency measures, measures shall not include roof replacement projects. [Amends and reenacts § 11-34.3 of the Code of Virginia.]

HB 1940 Delegate Betsy B. Carr Virginia Public Procurement Act; exempts from Act selection of pre-release and post-commitment services by Department of Juvenile Justice. [Amends and reenacts § 2.2-4343 of the Code of Virginia.]

HB 2017 Delegate Ronald A. Villanueva Virginia Public Procurement Act; bid, performance, and payment bonds, waiver by localities, a locality shall not enter into more than 10 nontransportation-related construction projects per year in which contract amount is in excess of $100,000 but less than $300,000, etc.,

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sunset provision. [Amends and reenacts §§ 2.2-4336 and 2.2-4337 of the Code of Virginia.]

HB 2096 Delegate Marcia S. “Cia” Price Virginia Industries for the Blind; exempted from requirements of Public Procurement Act when procuring components, etc. [Amends and reenacts § 2.2-4343 of the Code of Virginia.]

HB 2366 Delegate David B. Albo Virginia Public Procurement Act; requirements for use of construction management and design-build contracts, certain contracts may be utilized for projects where estimated cost is expected to be more than $10 million, etc., report. [Amends and reenacts §§ 2.2-4301, 2.2-4303, 2.2-4305, 2.2-4343, 2.2-4345, 23.1-1002, and 33.2-209 of the Code of Virginia; amends the Code of Virginia by adding in Title 2.2 a chapter numbered 43.1, containing articles numbered 1 through 5, consisting of sections numbered 2.2-4378 through 2.2-4383; and repeals §§ 2.2-4306, 2.2-4307, and 2.2-4308 of the Code of Virginia.]

HB 2396 Delegate Patrick A. Hope Virginia Public Procurement Act; SWaM program; participation of employment service organizations [Amends and reenacts § 2.2-4310 of the Code of Virginia.]

SB 965 Senator Emmett W. Hanger, Jr. Conflict of Interests Act, State and Local Government; prohibited contracts, provisions shall apply to contracts entered into on and after July 1, 2017, contracts entered into by an officer or employee or an immediate family member of such officer or employee with a soil and water conservation district, to participate in a cost-share program, etc., prior to effective date of this act. [Amends and reenacts § 2.2-3110 of the Code of Virginia.]

SB 1129 Senator Frank M. Ruff, Jr. Virginia Public Procurement Act; requirements for use of construction management and design-build contracts, certain contracts may be utilized for projects where estimated cost is expected to be more than $10 million, etc., report. [Amends and reenacts §§ 2.2-4301, 2.2-4303, 2.2-4305, 2.2-4343, 2.2-4345, 23.1-1002, and 33.2-209 of the Code of Virginia; amends the Code of Virginia by adding in Title 2.2 a chapter numbered 43.1, containing articles numbered 1 through 5, consisting of sections numbered 2.2-4378 through 2.2-4383; and repeals §§ 2.2-4306, 2.2-4307, and 2.2-4308 of the Code of Virginia.]

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SB 1334 Senator Frank M. Ruff, Jr. Virginia Public Procurement Act; small business enhancement program, limitations. [Amends and reenacts § 2.2-4310 of the Code of Virginia.]

SB 1508 Senator John A. Cosgrove, Jr. Virginia Public Procurement Act; architectural and professional engineering term contracts, includes certain school divisions. [Amends and reenacts § 2.2-4303.1 of the Code of Virginia.]

SB 1538 Senator Emmett W. Hanger, Jr. Virginia Public Procurement Act; contracts and subcontracts awarded to employment services organizations shall be credited toward small business, women-owned, and minority-owned business contracting and subcontracting goals of state agencies and contractors. [Amends and reenacts § 2.2-4310 of the Code of Virginia.]

SB 1548 Senator Bryce E. Reeves Virginia Public Procurement Act; public body may purchase from contract of Virginia Sheriffs' Association. [Amends and reenacts § 2.2-4304 of the Code of Virginia.]

DEEDS AND DEEDS OF TRUST HB 1478 Delegate Robert D. Orrock, Sr. Recordation tax; exempts deeds of trust given by

utility consumer services cooperatives. [Amends and reenacts § 58.1-811, as it is currently effective and as it may become effective, of the Code of Virginia.]

HB 1699 Delegate D.W. Marshall Danville, City of; establishment of pilot project regarding recordation of deeds subject to liens for unpaid taxes, pilot project may only be established by ordinance adopted by city council after public hearing, sunset date. [An Act to establish a pilot project in the City of Danville regarding recordation of deeds subject to liens for unpaid taxes.]

HB 2050 Delegate Les. R. Adams Tenancy; severance by the entireties by written instrument. [Amends and reenacts § 55-20.2 of the Code of Virginia.]

SB 875 Senator Frank M. Ruff, Jr. Recordation tax; exempts deeds of trust given by utility consumer services cooperatives. [Amends and reenacts § 58.1-811, as it is currently effective and as it may become effective, of the Code of Virginia.]

DISCLOSURE HB 2034 Delegate Jackson Miller Virginia Residential Property Disclosure Act;

adds two new disclosures required to be made by a seller of residential real property to a purchaser.

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[Amends and reenacts §§ 55-517 through 55-519.2, 55-519.4, 55-520, and 55-524 of the Code of Virginia and amends the Code of Virginia by adding sections numbered 55-517.1 and 55-519.2:1.]

SB 1037 Senator Mamie E. Locke Virginia Residential Property Disclosure Act; required disclosures, property located in local historic districts. [Amends and reenacts t §§ 55-517 through 55-519.2, 55-519.4, 55-520, and 55-524 of the Code of Virginia and amends the Code of Virginia by adding sections numbered 55-517.1 and 55-519.2:1.]

ECONOMIC DEVELOPMENT HB 1591 Delegate Matthew James Virginia Economic Development Partnership

Authority; site and building assessment program, minimum size of industrial sites. [Amends and reenacts § 2.2-2238 of the Code of Virginia.]

HB 1936 Delegate Betsy B. Carr Derelict and blighted buildings; land banks; receivership. [Amends and reenacts § 15.2-907.2 of the Code of Virginia].

HB 1970 Delegate R. Steven Landes Economic revitalization zones; counties may establish by ordinance. [An Act to amend the Code of Virginia by adding in Article 1 of Chapter 12 of Title 15.2 a section numbered 15.2-1232.2.]

HB 1973 Delegate Israel D. O’Quinn Economic Development Access Program; imposes a 48-month moratorium on repayment of funds allocated to a locality for a bonded project pursuant to Program, provided that all of other conditions of Commonwealth Transportation Board's economic development access policy are met. [An Act to impose a 48-month moratorium on the repayment of funds allocated for a bonded project pursuant to the Economic Development Access Program.]

HB 2471 Delegate S. Chris Jones Virginia Economic Development Partnership Authority; membership, powers and duties, terms of persons serving as members, advisory committees, closed meetings authorized for certain limited purposes, repeals provision referring to board of directors governing Authority. [Amends and reenacts §§ 2.2-3711 and 60.2-114 of the Code of Virginia; amends the Code of Virginia by adding sections numbered 2.2-2235.1, 2.2-2236.1, 2.2-2237.1, 2.2-2237.2, 2.2-2237.3, 2.2-2239.1, and 2.2-2239.2 and by adding in Article 1 of Chapter 31 of Title 58.1 a

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section numbered 58.1-3122.3; and repeals § 2.2-2235 of the Code of Virginia. Effective April 5, 2017.]

SB 886 Senator A. Benton “Ben” Chafin Local gas road improvement and Virginia Coalfield Economic Development Authority tax; use of revenues for the repair or enhancement of existing water or sewer systems and lines, extends sunset date to January 1, 2020. [Amends and reenacts § 58.1-3713 of the Code of Virginia.]

SB 976 Senator Emmett W. Hanger, Jr. Virginia Economic Development Partnership Authority; site and building assessment program, minimum size of industrial sites. [Amends and reenacts § 2.2-2238 of the Code of Virginia.]

SB 1574 Senator Frank M. Ruff, Jr. Virginia Economic Development Partnership Authority; membership, powers and duties, terms of persons serving as members, advisory committees, closed meetings authorized for certain limited purposes, repeals provision referring to board of directors governing Authority. [Amends and reenacts §§ 2.2-3711 and 60.2-114 of the Code of Virginia; amends the Code of Virginia by adding sections numbered 2.2-2235.1, 2.2-2236.1, 2.2-2237.1, 2.2-2237.2, 2.2-2237.3, 2.2-2239.1, and 2.2-2239.2 and by adding in Article 1 of Chapter 31 of Title 58.1 a section numbered 58.1-3122.3; and repeals § 2.2-2235 of the Code of Virginia. Effective April 5, 2017.]

SB 1591 Senator Charles W. Carrico, Sr. Economic Development Access Program; no locality that has been allocated funds for a bonded project by the Commonwealth Transportation Board shall repay such funds within a 48-month period, provided all of other conditions of Board's economic development access policy are met. [An Act to impose a 48-month moratorium on the repayment of funds allocated for a bonded project pursuant to the Economic Development Access Program.]

FAIR HOUSING LAW HB 2006 Delegate Betsy B. Carr Virginia Fair Housing Law; rights and

responsibilities with respect to use of an assistance animal in a dwelling, reasonable accommodations, interactive process. [Amends and reenacts § 36-96.1:1 of the Code of Virginia and amends the Code of Virginia by adding sections numbered 36-96.3:1 and 36-96.3:2.]

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SB 1228 Senator George L. Barker Virginia Fair Housing Law; rights and responsibilities with respect to use of an assistance animal in a dwelling, reasonable accommodations, interactive process. [Amends and reenacts § 36-96.1:1 of the Code of Virginia and amends the Code of Virginia by adding sections numbered 36-96.3:1 and 36-96.3:2.]

FORECLOSURE HB 1623 Delegate David E. Yancey Residential rental property; removes provision

that allows a tenant to remain in a dwelling unit that has been foreclosed, foreclosure shall act as a termination agreement, tenant may remain as a month-to-month tenant, unless or until successor owner terminates tenancy, terms of terminated rental agreement remain in effect, etc. [Amends and reenacts §§ 55-225.10 and 55-507 of the Code of Virginia.]

HB 1909 Delegate Joseph R. Yost Real property tax; nonjudicial sale of tax delinquent property. [Amends and reenacts § 58.1-3975 of the Code of Virginia.]

HB 2281 Delegate James A. “Jay” Leftwich Residential rental property; foreclosure shall act as a termination of rental agreement by landlord, tenant may remain in possession of dwelling. [Amends and reenacts §§ 54.1-2108.1 and 55-225.12 of the Code of Virginia.]

SB 966 Senator Mark D. Obenshain Residential rental property; foreclosure shall act as a termination of rental agreement by landlord, tenant may remain in possession of dwelling. [Amends and reenacts §§ 54.1-2108.1 and 55-225.12 of the Code of Virginia.]

SB 991 Senator Rosalyn R. Dance Residential rental property; removes provision that allows a tenant to remain in a dwelling unit that has been foreclosed, foreclosure shall act as a termination agreement, tenant may remain as a month-to-month tenant, unless or until successor owner terminates tenancy, terms of terminated rental agreement remain in effect, etc. [Amends and reenacts §§ 55-225.10 and 55-507 of the Code of Virginia.]

HOUSING AND REDEVELOPMENT HB 1585 Delegate Jeffrey L. Campbell Housing authorities; approval of local governing

body, including town councils, is required before authority may exercise certain powers. [Amends and reenacts § 36-19.2 of the Code of Virginia.]

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HB 1697 Delegate D.W. Marshall Housing crisis; extension of sunset date of land use approvals. [Amends and reenacts § 15.2-2209.1 of the Code of Virginia and to amend and reenact the second enactment of Chapter 509 of the Acts of Assembly of 2013.]

SB 919 Senator John S. Edwards Removal of blight; if locality, through its own agents or employees, removes, repairs, or secures any building, etc., after complying with certain notice provisions, or as otherwise permitted under Virginia Uniform Statewide Building Code in an event of an emergency, cost or expenses thereof shall be chargeable to and paid by owners of such property. [Amends and reenacts § 15.2-906 of the Code of Virginia.]

SB 1237 Senator A. Benton “Ben” Chafin Housing authorities; approval of local governing body, including town councils, is required before authority may exercise certain powers. [Amends and reenacts § 36-19.2 of the Code of Virginia.]

INSURANCE HB 1422 Delegate R. Lee Ware Virginia Consumer Protection Act; prohibited

practices, engaging in fraudulent or improper or dishonest conduct while engaged in a transaction that was initiated during a declared state of emergency, etc. [Amends and reenacts § 59.1-200 of the Code of Virginia.]

HB 1524 Delegate L. Scott Lingamfelter Special conservators of the peace; liability insurance required shall be personal injury, property damage, and miscellaneous casualty insurance, which includes professional liability insurance that provides coverage for any activity within scope of duties. [Amends and reenacts § 19.2-13 of the Code of Virginia.]

HB 1641 Delegate G. Manoli Loupassi Insurance policy limits; disclosure, homeowners or personal injury liability insurance, personal injury and wrongful death action. [An Act to amend the Code of Virginia by adding a section numbered 8.01-417.01.]

HB 2319 Delegate Jason S. Miyares National Flood Insurance Program; participation by affected localities in Community Rating System of Program, report. [An Act to amend the Code of Virginia by adding in Article 7 of Chapter 2 of Title 2.2 a section numbered 2.2-220.4.]

SB 839 Senator Glen H. Sturtevant, Jr. Virginia Consumer Protection Act; prohibited practices, engaging in fraudulent or improper or dishonest conduct while engaged in a transaction

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that was initiated during a declared state of emergency, etc. [Amends and reenacts § 59.1-200 of the Code of Virginia.]

LANDLORD AND TENANT HB 1869 Delegate Alfonso H. Lopez Virginia Residential Landlord and Tenant Act;

tenant obligations. [Amends and reenacts § 55-248.16 of the Code of Virginia.]

HB 2033 Delegate Jackson H. Miller Landlord and tenant law; residential tenancies, landlord and tenant obligations and remedies, repeals certain provisions referring to residential dwelling units, application of Act to certain occupants. [Amends and reenacts §§ 55-217, 55-222, 55-223, 55-224, 55-225.2, 55-225.3, 55-225.4, 55-225.6, 55-225.7, 55-225.9, 55-225.11, 55-225.12, 55-225.13, 55-226, 55-226.2, 55-237.1, 55-248.3:1, 55-248.4, 55-248.6, 55-248.7, 55-248.7:1, 55-248.12, 55-248.12:1, 55-248.13, 55-248.13:1, 55-248.13:2, 55-248.15:1, 55-248.16, 55-248.17, 55-248.18, 55-248.18:2, 55-248.21:1, 55-248.24, 55-248.27, 55-248.31, 55-248.38:1, and 55-248.38:3 of the Code of Virginia, amends the Code of Virginia by adding sections numbered 55-217.1, 55-225.01, 55-225.02, 55-225.11:1, and 55-225.19 through 55-225.48, and repeals §§ 55-225.8 and 55-248.5 of the Code of Virginia.]

LAND RECORDS, COURT RECORDS, AND CIVIL CLERKS HB 1515 Delegate James A. “Jay” Leftwich Circuit court clerks; electronic transfer of certain

real property information to certain public officials. [Amends and reenacts §§ 58.1-3303, 58.1-3360.1, 58.1-3361, and 64.2-510 of the Code of Virginia.]

HB 1630 Delegate Gregory D. Habeeb Clerk of circuit court; report of money kept by clerk, availability of annual report to Auditor of Public Accounts. [Amends and reenacts §§ 8.01-600, 17.1-124, and 17.1-125 of the Code of Virginia.]

HB 2035 Delegate Jackson H. Miller Circuit court clerks; clerk who has established an electronic filing system for land records may charge a fee not to exceed $5 per instrument. [Amends and reenacts § 17.1-258.3:1 of the Code of Virginia.]

SB 870 Senator Richard H. Stuart Circuit court clerks; clerk who has established an electronic filing system for land records may charge a fee not to exceed $5 per instrument.

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[Amends and reenacts § 17.1-258.3:1 of the Code of Virginia.]

LIENS (MECHANICS’ AND OTHER) HB 1992 Delegate Gregory D. Habeeb Lien priority; inserts "real estate" in several

places related to priority of tax liens. [Amends and reenacts §§ 15.2-901, 15.2-906, 15.2-907, 15.2-908, 15.2-908.1, and 15.2-1115 of the Code of Virginia.]

SB 867 Senator Richard H. Stuart Lien against person whose negligence causes injury; emergency medical services provider or agency. [Amends and reenacts § 8.01-66.2 of the Code of Virginia.]

SB 920 Senator John S. Edwards Lien priority; inserts "real estate" in several places related to priority of tax liens. [Amends and reenacts §§ 15.2-901, 15.2-906, 15.2-907, 15.2-908, 15.2-908.1, and 15.2-1115 of the Code of Virginia.]

SB 1189 Senator John S. Edwards Water and sewer services; no lien can be placed on property of an owner when lessee or tenant has delinquent fees until locality has made reasonable collection efforts, etc. [Amends and reenacts §§ 15.2-2119, 15.2-2119.1, 15.2-2122, and 15.2-5139 of the Code of Virginia and amends the Code of Virginia by adding a section numbered 15.2-2119.4.]

MANUFACTURED HOUSING SB 1123 Senator Jeremy S. McPike Manufactured Home Lot Rental Act; notice of

uncorrected violations. [An Act to amend the Code of Virginia by adding a section numbered 55-248.49:1.]

SB 1497 Senator Charles W. Carrico, Sr. Manufactured home; excludes a park model recreation vehicle from definition and defines vehicle. [Amends and reenacts § 46.2-100 of the Code of Virginia.]

PROFESSIONS AND OCCUPATIONS HB 1556 Delegate R. Lee Ware Real Estate Appraiser Board; exemptions from

licensure. [Amends and reenacts § 54.1-2010 of the Code of Virginia.]

HB 1979 Delegate Christopher K. Peace Contractors, Board of; exemptions, responsibility for contracting with unlicensed person. [Amends and reenacts § 54.1-1101 of the Code of Virginia and amends the Code of Virginia by adding a section numbered 54.1-1115.01.]

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SB 812 Senator Marsden Asbestos, Lead, and Home Inspectors, Board for;

home inspections on homes built prior to adoption of 2006 Virginia Construction Code, effective May 1, 2008, required information related to yellow shaded corrugated stainless steel tubing. [An Act to amend the Code of Virginia by adding in Article 2 of Chapter 5 of Title 54.1 a section numbered 54.1-517.2:1.]

SB 1113 Senator Jeremy S. McPike Contractors, Board for; optional bonding for Class A and B contractors. [Amends and reenacts §§ 54.1-1106, 54.1-1108, 54.1-1109, 54.1-1122, and 54.1-1123 of the Code of Virginia and amends the Code of Virginia by adding a section numbered 54.1-1120.1.]

SB 1193 Senator Richard H. Stuart Contractors, Board of; exemptions, responsibility for contracting with unlicensed person. [Amends and reenacts § 54.1-1101 of the Code of Virginia and amends the Code of Virginia by adding a section numbered 54.1-1115.01.]

SB 1374 Senator Bill R. DeSteph, Jr. Contractors, Board for; adds a professional engineer to membership. [Amends and reenacts § 54.1-1102 of the Code of Virginia.]

SB 1535 Senator Glen H. Sturtevant, Jr. Real Estate Appraiser Board; exemptions from licensure. [Amends and reenacts § 54.1-2010 of the Code of Virginia.]

SB 1573 Senator Frank W. Wagner Appraisal management companies; compensation of appraiser within 30 days of initial delivery of report. [Amends and reenacts § 54.1-2022.1 of the Code of Virginia.]

PROPERTY AND CONVEYANCES HB 1691 Delegate L. Mark Dudenhefer Widewater Beach Subdivision Citizens

Association, Inc.; Department of Conservation and Recreation to convey certain real property in Stafford County. [An Act to authorize the Department of Conservation and Recreation to convey certain real property to the Widewater Beach Subdivision Citizens Association, Inc.]

HB 1797 Delegate Christopher P. Stolle Proffers; when any landowner subject to certain proffers applies to the governing body for amendments to such proffered conditions, written notice of such application shall be given. [Amends and reenacts § 15.2-2302 of the Code of Virginia.]

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SB 1578 Senator Thomas K. Norment, Jr. Short-term rental of property; locality authorized to adopt an ordinance requiring registration of persons offering property for rental, if locality adopts a registry ordinance, such ordinance may include a penalty not to exceed $500 per violation. [Amends and reenacts §§ 4.1-100, as it is currently effective and as it shall become effective, and 4.1-200 of the Code of Virginia and amends the Code of Virginia by adding in Article 5 of Chapter 9 of Title 15.2 a section numbered 15.2-983.]

PROPERTY, GROUNDS AND BUILDINGS (STATE-OWNED) HB 1952 Delegate Christopher K. Peace Proposed acquisitions of real property; review by

Department of General Services, acquisitions shall be subject to review of Office of Attorney General and approval of Governor. [Amends and reenacts § 2.2-1149 of the Code of Virginia.]

SB 1588 Senator Ryan T. McDougle General Assembly Building replacement project; Department of General Services, et al., shall conduct public sales or auctions of surplus property, no restriction on purchase by any person of property. [Amends and reenacts An Act to provide for the sale of surplus property from the General Assembly Building replacement project; emergency. Effective March 20, 2017.]

REAL PROPERTY TAX HB 1455 Delegate R. Lee Ware Real property tax; partial exemption for certain

commercial and industrial structures located in a technology zone. [Amends and reenacts § 58.1-3221 of the Code of Virginia.]

HB 1476 Delegate Robert D. Orrock, Sr. Real property tax; special assessment for land preservation. [Amends and reenacts § 58.1-3234 of the Code of Virginia.]

HB 1820 Delegate Patrick A. Hope Real property tax; board of equalization members in certain counties. [Amends and reenacts §§ 15.2-716 and 15.2-716.1 of the Code of Virginia.]

HB 1884 Delegate Timothy D. Hugo Real property tax; localities authorized to exempt the primary residence of surviving spouse of a law-enforcement officer, etc., who is killed in the line of duty. [An Act to amend the Code of Virginia by adding in Chapter 32 of Title 58.1 an article numbered 2.5, consisting of sections numbered 58.1-3219.13 through 58.1-3219.16.]

HB 2219 Delegate L. Mark Dudenhefer Real property tax; Stafford County allowed, by ordinance, to restrict deferral of taxes authorized

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under current law. [An Act to authorize Stafford County to permit taxpayers to defer payment of a portion of certain real property taxes.]

SB 1248 Senator Richard H. Stuart Real property tax; Stafford County may adopt, by ordinance, a program to permit taxpayers to defer payment of portion of certain real property taxes. [An Act to authorize Stafford County to permit taxpayers to defer payment of a portion of certain real property taxes.]

RESOLUTIONS AND STUDIES HJ 640 Delegate Alfonso H. Lopez Public Lands Day; designating as last Saturday in

September 2017, and each succeeding year thereafter.

HJ 713 Delegate Christopher P. Stolle

Hampton Roads Association for Commercial Real Estate; commending.

HJ 862 Delegate Patrick A. Hope

AHC Inc.; commemorating its 40th anniversary.

HJ 1086 Delegate Richard L. Anderson

McQuigg, Michèle B.; recording sorrow upon death.

HJ 1042 Delegate Eileen Filler-Corn

Commending Burke Centre Conservancy.

SJ 286 Senator Bryce E. Reeves

Lake of the Woods Association, Inc.; commending.

TAXATION HB 1415 Delegate R. Lee Ware Transient occupancy tax; Goochland, Powhatan,

and Warren Counties authorized to impose tax at a rate not to exceed five percent, provided that any excess over two percent is designated and spent solely for tourism purposes. [Amends and reenacts § 58.1-3819 of the Code of Virginia.]

HB 1433 Delegate Peter F. Farrell Neighborhood Assistance Act Tax Credit; allocation to organizations that did not receive any credit in the preceding year. [Amends and reenacts § 58.1-439.20 of the Code of Virginia.]

HB 1463 Delegate Richard C. “Rip” Sullivan Delinquent taxes; publication of list by governing body or treasurer. [Amends and reenacts § 58.1-3924 of the Code of Virginia.]

HB 1565 Delegate Michael J. Webert Local tax and regulatory incentives; authorizes localities to create green development zones that provide flexibility for up to 10 years to a business operating in an energy-efficient building, etc. [Amends and reenacts § 58.1-3245.12 of the Code of Virginia and amends the Code of Virginia by adding in Chapter 38 of Title 58.1 an article numbered 13, consisting of a section numbered 58.1-3854.]

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HB 1838 Delegate Robert D. Orrock, Sr. Neighborhood Assistance Act tax credits; neighborhood organization submitting a proposal to Superintendent of Public Instruction shall include a list of all localities in which organization provided services during program year beginning July 1, 2016, report. [An Act to require certain neighborhood organization proposals for the Neighborhood Assistance Tax Credit to provide information.]

HB 2169 Delegate Todd E. Pillion Local gas road improvement and Virginia Coalfield Economic Development Authority tax; use of revenues for the repair or enhancement of existing water or sewer systems and lines, extends sunset date to January 1, 2020. [Amends and reenacts § 58.1-3713 of the Code of Virginia.]

SB 1165 Senator Bill R. DeSteph, Jr. Neighborhood Assistance Act tax credits; Commissioner of Social Services and Superintendent of Public Instruction to consider past performance of organizations requesting credits. [Amends and reenacts § 58.1-439.20 of the Code of Virginia.]

SB 1168 Senator Bill R. DeSteph, Jr. Neighborhood Assistance Act; reorganizes provisions of tax credit program [Amends and reenacts § 58.1-439.20 of the Code of Virginia and amends the Code of Virginia by adding sections numbered 58.1-439.20:1 and 58.1-439.20:2.]

SB 1328 Senator Charles W. Carrico, Sr. Enterprise zone grants and tax credits; qualified real property improvement expenditures. [Amends and reenacts §§ 59.1-280.1 and 59.1-548 of the Code of Virginia.]

TRANSPORTATION HB 2138 Delegate James M. LeMunyon Transportation planning, state and local; adoption of

any comprehensive plan in Northern Virginia, Department of Transportation shall specify by name and location any transportation facility within scope of review having a functional classification of minor arterial or higher for which an increase in traffic volume is expected, etc. [Amends and reenacts § 15.2-2222.1 of the Code of Virginia.]

SB 932 Senator Barbara A. Favola Utility easements; exempts from public hearing requirement prior to disposal of real property by locality conveyance of easements related to transportation projects. [Amends and reenacts § 15.2-1800 of the Code of Virginia.]

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WATERS OF THE STATE, PORTS, AND HARBORS HB 1454 Delegate Terry L. Austin James River; designating portion in Botetourt and

Rockbridge Counties, including Towns of Buchanan and Glasgow, from its origination at confluence of Jackson and Cowpasture Rivers to Rockbridge-Amhurst-Bedford County line a component of Virginia Scenic Rivers System. [Amends and reenacts § 15.2-2222.1 of the Code of Virginia.]

HB 1517 Delegate Barry D. Knight Sand management; Virginia Beach Wetlands Board may develop and adopt a General Permit for Sand Management and Placement Profiles for properties in the Sandbridge Beach Subdivision of Virginia Beach, Norfolk Wetlands Board may develop and adopt a General Permit for Sand Management and Placement Profiles for properties in City of Norfolk. [Amends and reenacts § 28.2-1408.2 of the Code of Virginia.]

HB 1562 Delegate Mark L. Cole Dam Safety, Flood Prevention and Protection Assistance Fund; Director of Department of Conservation and Recreation may make grants or loans to a local government that owns a dam, to a local government for a dam located within locality, or to a private entity that owns a dam. [Amends and reenacts § 10.1-603.19 of the Code of Virginia.]

HB 1796 Delegate Christopher P. Stolle Oyster grounds; municipal dredging projects located in Lynnhaven River or its creeks and tributaries, including projects to restore existing navigation channels in areas approved by Marine Resources Commission, sunset provision. [Amends and reenacts § 28.2-618 of the Code of Virginia.]

SB 1143 Senator Bill R. DeSteph, Jr. Oyster grounds; municipal dredging projects located in Lynnhaven River or its creeks and tributaries, including projects to restore existing navigation channels in areas approved by Marine Resources Commission, sunset provision. [Amends and reenacts § 28.2-618 of the Code of Virginia.]

SB 1196 Senator R. Creigh Deeds James River; designating portion in Botetourt and Rockbridge Counties, including Towns of Buchanan and Glasgow, from its origination at confluence of Jackson and Cowpasture Rivers to Rockbridge-Amhurst-Bedford County line a component of Virginia Scenic Rivers System. [Amends and reenacts § 10.1-413 of the Code of Virginia.]

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WILLS, TRUSTS, AND FIDUCIARIES HB 1516 Delegate James A. “Jay” Leftwich Surviving spouse's elective share; homestead

allowance benefit. [Amends and reenacts § 64.2-311 of the Code of Virginia.]

HB 1608 Delegate James A. “Jay” Leftwich Uniform Fiduciary Access to Digital Assets Act; created, repeals Privacy Expectation Afterlife and Choices Act. [Amends and reenacts § 64.2-1622 of the Code of Virginia; amends the Code of Virginia by adding in Chapter 1 of Title 64.2 an article numbered 3.1, consisting of sections numbered 64.2-116 through 64.2-132; and repeals Article 3 (§§ 64.2-109 through 64.2-115) of Chapter 1 of Title 64.2 of the Code of Virginia.]

HB 1617 Delegate James A. “Jay” Leftwich Legal malpractice; statute of limitation related to estate planning. [Amends and reenacts § 64.2-520 of the Code of Virginia and amends the Code of Virginia by adding in Article 3 of Chapter 5 of Title 64.2 a section numbered 64.2-520.1.]

HB 1618 Delegate Gregory D. Habeeb Nonexoneration of debts on property of decedent; notice to creditor and beneficiaries, notice shall be sent by certified mail. [Amends and reenacts § 64.2-531 of the Code of Virginia.]

HB 1654 Delegate G. Manoli Loupassi Accounts, commissioner of; removes provision that allows charge of fee for examination and approval of statement in lieu of settlement of accounts. [Amends and reenacts § 64.2-1314 of the Code of Virginia.]

SB 815 Senator Scott A. Surovell Child support arrearages; priority of debts to be paid from decedent's assets. [Amends and reenacts § 64.2-528 of the Code of Virginia.]

SB 903 Senator Mark D. Obenshain Uniform Fiduciary Access to Digital Assets Act; created, repeals Privacy Expectation Afterlife and Choices Act. [Amends and reenacts § 64.2-1622 of the Code of Virginia; amends the Code of Virginia by adding in Chapter 1 of Title 64.2 an article numbered 3.1, consisting of sections numbered 64.2-116 through 64.2-132; and repeals Article 3 (§§ 64.2-109 through 64.2-115) of Chapter 1 of Title 64.2 of the Code of Virginia.]

SB 913 Senator John S. Edwards Uniform Trust Decanting Act; creation, repeals trustee's special power to appoint to a second trust. [Amends and reenacts § 64.2-701 of the Code of Virginia; amends the Code of Virginia by adding in Chapter 7 of Title 64.2 an article numbered 8.1, consisting of sections numbered 64.2-779.1 through

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64.2-779.25; and repeals § 64.2-778.1 of the Code of Virginia.]

SB 1140 Senator Glen H. Sturtevant, Jr. Legal malpractice; statute of limitation related to estate planning. [Amends and reenacts § 64.2-520 of the Code of Virginia and amends the Code of Virginia by adding in Article 3 of Chapter 5 of Title 64.2 a section numbered 64.2-520.1.]

SB 1176 Senator A. Benton “Ben” Chafin Nonexoneration of debts on property of decedent; notice to creditor and beneficiaries, notice shall be sent by certified mail. [Amends and reenacts § 64.2-531 of the Code of Virginia.]

SB 1177 Senator A. Benton “Ben” Chafin Surviving spouse's elective share; homestead allowance benefit. [Amends and reenacts § 64.2-311 of the Code of Virginia.]

WATER, SEWER AND STORMWATER HB 1597 Delegate Michael J. Webert Stormwater management utility, local; full or partial

waiver of charges when stormwater runoff produced by property is retained and treated on site. [Amends and reenacts § 15.2-2114 of the Code of Virginia.]

HB 1619 Delegate David L. Bulova Watershed discharge permits; review of allocations by State Water Control Board. [Amends and reenacts § 62.1-44.19:14 of the Code of Virginia.]

HB 1774 Delegate M. Keith Hodges Stormwater and erosion control; Commonwealth Center for Recurrent Flooding Resiliency to convene a work group to examine opportunities to improve stormwater management in rural localities located in Tidewater Virginia. [Amends and reenacts the tenth enactments of Chapters 68 and 758 of the Acts of Assembly of 2016 and to direct the Commonwealth Center for Recurrent Flooding Resiliency to convene a work group relating to stormwater and erosion control.]

HB 2009 Delegate M. Keith Hodges Stormwater and erosion management; administration of program by certified third party. [Amends and reenacts § 62.1-44.15:27, as it is currently effective and as it shall become effective, of the Code of Virginia.]

HB 2076 Delegate Tony O. Wilt State Water Control Board; stormwater management programs, regulations, professional license. [Amends and reenacts § 62.1-44.15:28, as it is currently effective and as it shall become effective, of the Code of Virginia.]

HB 2383 Delegate L. Scott Lingamfelter Combined sewer overflow outfalls; Department of Environmental Quality to identify owner of any

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outfall that discharges into Chesapeake Bay Watershed, owner shall, by July 1, 2023, initiate construction activities necessary to bring outfall into compliance and shall, by July 1, 2025, bring CSO outfall into compliance with Virginia law, etc. [An Act to direct compliance with regulations of certain combined sewer overflow outfalls.]

HB 2477 Delegate Robert D. Orrock, Sr. Onsite sewage systems and private wells; Department of Health to take steps to begin eliminating site evaluation and design services, report. [An Act to require the Department of Health to take steps to begin eliminating site evaluation and design services for onsite sewage systems and private wells provided by the Department.]

SB 898 Senator Richard H. Stuart Combined sewer overflow outfalls; Department of Environmental Quality to identify owner of any outfall that discharges into Chesapeake Bay Watershed, owner shall, by July 1, 2023, initiate construction activities necessary to bring outfall into compliance and shall, by July 1, 2025, bring CSO outfall into compliance with Virginia law, etc. [An Act to direct compliance with regulations of certain combined sewer overflow outfalls.]

SB 1127 Senator Mark D. Obenshain State Water Control Board; stormwater management programs, regulations, professional license. [Amends and reenacts § 62.1-44.15:28, as it is currently effective and as it shall become effective, of the Code of Virginia.]

SB 1577 Senator Mark J. Peake Small alternative onsite sewage systems; Department of Health shall evaluate need for 180-day biochemical oxygen demand sampling of systems that serve no more than three attached or detached single-family residences, etc. [An Act to require the Department of Health to evaluate the need for 180-day biochemical oxygen demand sampling of small alternative onsite sewage systems.]

ZONING AND LAND USE HB 1994 Delegate Gregory D. Habeeb Zoning Appeals, Board of; clarifies provisions

referring to appeal costs, includes governing body. [Amends and reenacts § 15.2-2314 of the Code of Virginia.]

HB 2469 Delegate S. Chris Jones Zoning; delinquent charges. [Amends and reenacts § 15.2-2286 of the Code of Virginia.]

SB 1173 Senator Mark D. Obenshain Vested property rights; structure that requires no permit and complies with the zoning ordinance, etc.,

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in any proceeding when the authorized government official is deceased or is otherwise unavailable to testify, uncorroborated testimony of oral statement of such official shall not be sufficient evidence. [Amends and reenacts § 15.2-2307 of the Code of Virginia.]

SB 1282 Senator Ryan T. McDougle Wireless communications infrastructure; zoning for small cell facilities, locality shall not adopt a moratorium on considering zoning applications, access to public rights-of-way by wireless services providers, etc. [Amends the Code of Virginia by adding in Chapter 22 of Title 15.2 an article numbered 7.2, consisting of sections numbered 15.2-2316.3, 15.2-2316.4, and 15.2-2316.5, and by adding in Title 56 a chapter numbered 15.1, consisting of sections numbered 56-484.26 through 56-484.31.]

SB 1559 Senator J. Chapman “Chap” Petersen Zoning appeals, board of; appeal period shall not commence until zoning administrator's written order is sent by registered mail to, or posted at, last known address, etc., of property owner or its registered agent. [Amends and reenacts § 15.2-2311 of the Code of Virginia.]

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2017 VIRGINIA GENERAL ASSEMBLY REPORT: REAL ESTATE LEGISLATION

by Jeremy R. Moss*

As has become the tradition of the Virginia State Bar Real Property Section, this annual compilation of legislation passed by the General Assembly includes those bills of interest to real estate practitioners in the Commonwealth.

The General Assembly continues to routinely address a wide range of real estate-related topics – from traditional real estate matters (e.g., deeds, deeds of trust and disclosure), to more tangentially-related fields (e.g., cemeteries and graveyards) to evolving areas of real estate practice (including stormwater and flooding resiliency).

2017 SESSION BY THE NUMBERS

The 2017 Session of the Virginia General Assembly convened on January 11, 2017 and adjourned sine die on February 25, 2017. This was a “short” session of the General Assembly, lasting only 45 days. A reconvened, “veto” session was held on April 5, 2017.

In all, 2,959 bills and resolutions were introduced during the 2017 session and 242 were carried over from the 2016 session for consideration this year. This is an increase in the number of bills introduced during the last short-session in (2015 – 2,776 bills), but a decrease in the number introduced in last-year’s “long” session (3,286).

Of the bills and resolutions considered, 1,773 were passed by both the Senate and the House of Delegates. Excluding commending and memorializing resolutions, 926 bills passed.1 Of those bills that passed, 519 passed unanimously while 407 passed with opposition.

A total of 1,428 bills failed. Excluding commending and memorializing resolutions, 1,355 bills failed (including 242 bills continued to 2017) and 54 were incorporated into another bill. 304 bills were killed in a subcommittee of the House of Delegates, 504 bills were killed in a committee of the House, 510 bills were killed in a committee of the Senate and only 37 bills died on the House or Senate floors. Of those bills that failed, 777 bills failed with no recorded vote.

Governor McAuliffe vetoed 40 bills, the most vetoes by a Virginia governor in a single session.

* Jeremy R. Moss is Of Counsel with Vandeventer Black LLP in Norfolk, Virginia, concentrating

his practice on the representation of common interest community associations and other businesses. Mr. Moss has been active in legislative matters throughout most of his practice, previously serving as part of the team providing legislative counsel (in Virginia) to an international membership organization related to common interest community associations. Mr. Moss is the Chair of the Virginia Legislative Action Committee of Community Associations Institute, Secretary/Treasurer of the Virginia Bar Association Real Estate Section Council, Chair of the Virginia State Bar Real Property Section Committee on Common Interest Communities, and a member of the Foundation for Community Association Research. Mr. Moss is a fellow of the College of Community Association Lawyers, and is the youngest fellow ever inducted into the College.

1 According to Virginia Public Access Project, Pass or Fail? Fate of 207 Legislation (http://www.vpap.org/infographics/pass-or-fail-fate-2017-legislation/) (Last accessed April 5, 2017).

http://www.vpap.org/infographics/pass-or-fail-fate-2017-legislation/

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THE SESSION AT A GLANCE

This year, the greatest number of bills covered in this compilation relate to contracts (14) and conservation, land preservation, historic rehabilitation and the environment (11).2 A number of bills also amend statutes addressing water, sewers and stormwater (10), taxation (9), professions and occupations (9) and economic development (8).

Several of the bills summarized below are listed among the most significant bills considered during the 2017 session,3 including legislation related to combined sewage overflow outfalls (see House Bill 2383 and Senate Bill 898 below), the foreclosure of residential rental property (see House Bill 1623 and Senate Bill 991), responsibility for contracting with an unlicensed contractor (see House Bill 1979 and Senate Bill 1193), short-term rental of property (Senate Bill 1578), real property tax exemptions for surviving spouses of first responders killed in the line of duty (House Bill 1884), and a restructuring of the Virginia Economic Development Partnership (see House Bill 2471 and Senate Bill 1574).

Actual copies of the legislation, together with bill summaries and history of legislative action on those bills, may be viewed on the General Assembly website at http://leg1.state.va.us/lis.htm. The summaries below are heavily derived from abstracts prepared by the Virginia Division of Legislative Services.4 Because of the nature of a legislative review and summary, individual pieces of legislation should be carefully reviewed to gain a complete understanding of the legislation’s impact and implications.

Unless otherwise noted, measures that passed the General Assembly will become effective July 1, 2017. Several pieces of legislation include emergency clauses or delayed effective dates—although this summary attempts to identify those dates, careful attention should be given to the effective dates of specific legislation.

Legislation below is organized first by topic area, then chronologically, then separated by House, then Senate, within each topic area.

BUILDING CODE

The General Assembly adopted several pieces of legislation affecting the Uniform Statewide Building Code.

To protect the privacy of individuals in the Commonwealth, information included in engineering and construction drawings and plans for any single-family residential dwelling submitted to comply with the Uniform Statewide Building Code or the Statewide Fire Prevention Code is confidential and is not subject to disclosure under the Virginia Freedom of Information Act (except to the applicant or the property owner, upon the applicant's or owner's request) (House Bill 1587).

The General Assembly also directed the Virginia Department of Housing and Community Development to consider including a provision in the current revision of the Uniform Statewide Building Code to ensure localities provide appropriate notice to residents of manufactured home parks of any Building Code violation by a park owner that jeopardizes the health and safety of those residents (House

2 The General Assembly adopted at least eleven bills related to wills, trusts and fiduciaries which

are listed in the accompanying bill list, but omitted from this report. 3 See 2017 Session Highlights (http://dls.virginia.gov/pubs/hilights/2017/Highlights2017.pdf).

Last accessed April 21, 2017. 4 A directory of the Division of Legislative Services, a group of dedicated attorneys, civil servants

and staff persons is available here: http://dls.virginia.gov/staff_directory.html. The author wishes to extend his sincere “thank you,” to all those who carry out the very important functions DLS provides the Commonwealth.

http://leg1.state.va.us/lis.htm

http://dls.virginia.gov/pubs/hilights/2017/Highlights2017.pdf

http://dls.virginia.gov/staff_directory.html

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Bill 2203). A report to the General Assembly about the status of consideration is due no later than November 1, 2017. The bill contains an emergency clause.

In continuing efforts to address blighted properties, the General Assembly expanded existing legislation to allow localities to charge owners of property the cost the locality incurs in removing or repairing a building or structure on such property if permitted under the Virginia Uniform Statewide Building Code in the event of an emergency (Senate Bill 919).

BUSINESS ENTITIES

The General Assembly adopted legislation to address the use of assumed or fictitious names when conducting or transacting business (Senate Bill 1309). The legislation prohibits a “person” from conducting or transacting business under any assumed or fictitious name unless that person files a certificate of assumed or fictitious name with the clerk of the State Corporation Commission.5

CEMETERIES AND GRAVEYARDS

In companion bills, the General Assembly established alternate distribution methods for perpetual care trust funds, including additional notice and reporting requirements when those methods are requested (House Bill 1505 and Senate Bill 891).

In other legislation, the General Assembly directed the distribution of funds appropriated to preserve historical African-American cemeteries established before 1900, and establishes a funding formula for maintenance (House Bill 1547).6

CIVIL REMEDIES AND PROCEDURE

In continued efforts to monitor and regulate child care providers, the General Assembly adopted legislation requiring specific individuals to undergo a fingerprint-based national criminal history background check (House Bill 1568).7

The General Assembly altered the common-law use of the “fireman’s rule,” as a defense to claims of negligence (House Bill 1590).8

Legislation adopted during the 2017 Session requires the clerks of Circuit Courts to make a copy of the annual report the clerk is currently required to provide to the court available to the Auditor of Public Accounts (House Bill 1630). The bill also requires a clerk to record in the civil order book (i) trust fund

5 The legislation eliminates the current requirement that a person conducting business under an

assumed or fictitious name file a certificate with the clerk of the circuit court where the business is to be conducted. An enactment clause provides that the legislation is to be applied prospectively, does not affect the validity of a certificate filed prior to the effective date, and does not require any person who was in compliance with applicable laws regarding fictitious or assumed name certificates prior to the act's effective date to take any action to comply with the act's requirements. The measure has a delayed effective date of May 1, 2019.

6 The legislation specifically references two cemeteries, East End Cemetery in Henrico County and Evergreen Cemetery in the City of Richmond, that are to receive any funds appropriated for a total of 6,975 gravesites.

7 The legislation has an expiration date of July 1, 2018, but provides that if any provision of the federal Child Care and Development Block Grant Act of 2014 establishing a corresponding requirement is repealed prior to July 1, 2018, the provision of this Virginia legislation establishing the requirement expires at that point.

8 The fireman's rule is a defense to damages based on assumption of the usual risks of injury in such employment, whether caused by a negligent or a nonnegligent act of the defendant.

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orders and (ii) the annual trust fund report related to the receipt of money (these recordings are in addition to, but not in lieu of, any other required recording).

The General Assembly continued to address landlord/tenant matters (additional legislation is summarized below under the heading, Landlord and Tenant), adopting legislation to clarify the procedure for bifurcating possession from final rent and damages in unlawful detainer actions (House Bill 1811). The legislation further clarifies types of judgments for which a writ of possession may be issued immediately, and removes certain requirements for written notices of satisfaction in General District Court.

COMMUNITY ASSOCIATIONS

In 2017, the General Assembly continued efforts to refine association disclosure packets provided by property owners’ associations. Legislation requires the Common Interest Community Board to revise its current, one-page disclosure form “that the purchase contract for a lot within an association is a legally binding document once it is signed by the prospective purchaser where the purchaser has not elected to cancel the purchase contract in accordance with law.” (House Bill 1475).

In response to the Virginia Supreme Court decision in February, 2016, in Tvardek v. Powhatan Village Homeowners Association, Inc., the General Assembly adopted legislation to clarify that certain amendment provisions of the Property Owners’ Association Act do not apply to property owners’ associations if provided otherwise in the recorded declaration (House Bill 1554).

Four similar bills (two sets of companion bills–two bills addressing provisions of the Condominium Act and two bills addressing provisions of the Property Owners’ Association Act) clarify that an association (whether a condominium unit owners association or property owners’ association) may require the use of an association-provided “for sale” sign or a “for sale” sign that does not comply with requirements of the Real Estate Board, only if expressly authorized in the recorded declaration or condominium instruments (House Bills 2045 and 2274; Senate Bills 1231 and 1255). The legislation establishes authority for community associations to prohibit the placement of signs in the common area and establish reasonable rules and regulations that regulate (a) the number of signs, (b) the location of signs, (c) the manner in which signs are affixed, and (d) the period of time after settlement when the signs must be removed.

The bills also authorize the Common Interest Community Board to receive complaints directly from any person aggrieved by an association's failure to deliver a resale certificate or disclosure packet within the time-period required under the Condominium Act, the Virginia Real Estate Cooperative Act, or the Property Owners' Association Act.

CONDEMNATION AND EMINENT DOMAIN

Legislation adopted by the General Assembly clarifies notice requirements for certain “quick take” condemnation proceedings and requires that a condemnor or the Commissioner of Highways give notice to the owner or tenant of freehold property subject to condemnation between 30 and 45 days prior to the filing or recordation of a certificate (House Bill 2024).

In other legislation, the General Assembly requires that an authorized condemnor in a "quick-take" condemnation institute proceedings within 180 days of the recordation of a certificate terminating the interest of the owner of the property (Senate Bill 927).9 The bill further provides that the property owner has 180 days after the condemnor has entered upon and taken possession of the property, or after the recordation of a certificate to petition the court for a determination of just compensation for the property taken or damaged.

9 Under current law, such proceedings must be instituted within 60 days after the completion of the

construction of the improvements upon the property.

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The General Assembly directed courts to reimburse a plaintiff for the costs of an inverse condemnation proceeding for "damaging" property (if a judgment is entered for the plaintiff). (Senate Bill 1153).10 Also, interest on an award in a condemnation proceeding that is greater than the amount the condemnor deposited with the court shall now accrue at the judgment rate (Senate Bill 1421).

CONSERVATION, LAND PRESERVATION, HISTORIC REHABILITATION AND ENVIRONMENT

As noted, the General Assembly adopted and enacted several bills related to conservation, land preservation, historic rehabilitation, and environment.

Companion bills extended the scenic river designation of a portion of the James River.11 (House Bill 1454 and Senate Bill 1196)

The General Assembly also addressed issues related to use of land for mining and included an increase in the mandatory bond amount furnished by operators on mining land (House Bill 1509). In the same legislation, the minimum size of the Minerals Reclamation Fund was increased from $250,000 to $2 million, and the Commonwealth is granted a lien on certain property reclaimed by the Director of the Department of Mines, Minerals and Energy, setting out a process by which the Director either perfects or waives the lien.

The General Assembly directed the Department of Environmental Quality and the Region 2000 Services Authority to continue to reduce the odor issues at the landfill operated by the Authority in Campbell County and to report their efforts to the Chairman of the House Committee on Agriculture, Chesapeake and Natural Resources, by November 1, 2017 (House Bill 1600). Through this legislation, the Region 2000 Services Authority is required to connect certain parts of its landfill gas collection system to an existing collection system.

An exception to the ban on setting of certain fires from February 15 through April 30 was established by the General Assembly when necessary to prevent damage to orchards or vineyards by frost or freezing temperatures (House Bill 1793).

Legislation adopted by the General Assembly requires the Director of the Department of Environmental Quality to use certain funds to purchase nutrient credits (formerly called nutrient offsets) for point or nonpoint sources that achieve reductions beyond the requirements of state or federal law or the Chesapeake Bay Watershed Implementation Plan. The Director is also empowered to consider the recommendations of the Secretary of Commerce and Trade and the requirements of the State Water Control Law (§ 62.1-44.2 et seq.) in the sale of nutrient credits to new or expanding private facilities (House Bill 2311).12

In companion bills, historic rehabilitation tax credits that may be claimed by each taxpayer will be limited to $5 million per year (including amounts carried over from prior taxable years), for taxable years beginning January 1, 2017, but before January 1, 2019 (House Bill 2460 and Senate Bill 1034).

10 Under current law, the court is directed to award costs only for the “taking” of property. The

amendment in this bill corresponds with the language of amendments to Article I, Section 11 of the Constitution of Virginia, which became effective on January 1, 2013, and applies to declaratory judgment proceedings filed on or after July 1, 2017.

11 Located in Botetourt and Rockbridge Counties and extended from 14 miles to 59 miles. 12 The Department of Environmental Quality is further directed to establish procedures for

distributing moneys from the Nutrient Offset Fund (with certain requirements). With this legislation, there is no longer priority given to nutrient offsets produced from facilities that generate electricity from animal waste.

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In other legislation, the General Assembly extended to taxable year 2017 the $20,000 limit on the amount that a taxpayer may claim per year under the land preservation tax credit (Senate Bill 963).13

The two percent transfer fee for land preservation tax credits no longer applies to a distribution of credits to a nonresident owner of a pass-through entity when those credits are applied by the entity to the withholding tax of the nonresident owner (Senate Bill 1286).

Related to energy projects, the General Assembly passed legislation to provide that certain small renewable energy projects are eligible for a permit by rule and are exempt from environmental review and permitting by the State Corporation Commission (Senate Bill 1395).

Legislation was adopted to require the owner or operator of a coal combustion residuals unit to identify water pollution and address corrective measures to resolve it, evaluate the clean closure of the unit, and demonstrate the long-term safety of the unit (Senate Bill 1398). The bill contains reporting requirements and addresses delays in the issuance of a permit to close a unit.

CONTRACTS

The General Assembly continues to address contract rights and responsibilities, particularly as they relate to contracts involving the Commonwealth or localities.14

Companion bills created an exception to the prohibition against certain contracts involving family members in regard to participation in the Virginia Agricultural Best Management Practices Cost-Share Program (House Bill 1472 and Senate Bill 965).15

The maximum permissible fee for any single project included in an architectural or professional engineering service contract on multiple construction projects was increased from $100,000 to $150,000 (House Bill 1693).

Legislation also permits the use of cooperative procurement for energy conservation or operational efficiency measures in certain instances (House Bill 1712).16

The selection of pre-release and post-commitment services by the Department of Juvenile Justice has been exempted from the Virginia Public Procurement Act (House Bill 1940).

If determined to be in the best interest of a locality, the locality may waive the prequalification requirement for a bidder or contractor with a current Class A contractor license for certain contracts17 where the bid, performance, and payment bond requirements are also waived (House Bill 2017).

The Virginia Industries for the Blind is now exempted from the requirements of the Public Procurement Act (§ 2.2-4300 et seq.) when procuring components, materials, supplies, or services for use

13 The bill retains the $50,000 limit for each subsequent taxable year beginning now in taxable year

2018. 14 The author recognizes that several of the bills listed in this section have only a tangential

relationship to “real estate,” but determined it best to include each of these bills in lieu of creating confusion that only those bills listed in a modified summary were adopted.

15 The legislation expressly provides for retroactive application in certain instances. 16 The bill provides, however, that energy conservation or operational efficiency measures shall not

include roof replacement projects. 17 Non-transportation-related construction contracts more than $100,000, but less than $300,000,

and less than 10 per year.

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in commodities and services furnished to the federal government in connection with its operation as an AbilityOne Program-qualified nonprofit agency for the blind (House Bill 2096).

Requirements have been established by identical bills in the General Assembly for the procurement of construction using the construction management and design-build procurement methods (by state and local public bodies and covered institutions of higher education), and the conditions under which such methods may be used (House Bill 2366 and Senate Bill 1129).

Limitations to price preferences were established for small businesses certified by the Department of Small Business and Supplier Diversity or a subcategory of small businesses, which can no longer exceed the low bid by more than five percent (Senate Bill 1334).

Certain local school divisions are now included under the exception from (i) the $100,000 single-project fee limit for architectural and professional engineering term contracts and (ii) the $1 million annual aggregate total of all such projects (Senate Bill 1508).18

Contracts (and subcontracts) awarded to employment services organizations will now be credited toward the small business, women-owned, and minority-owned business contracting and subcontracting goals of state agencies and state contractors after companion bills passed the General Assembly (House Bill 2396 and Senate Bill 1538).

Public bodies may now purchase from the contract of the Virginia Sheriffs' Association (Senate Bill 1548).

DEEDS AND DEEDS OF TRUST

In companion bills, deeds of trust given by utility consumer services cooperatives are exempt from recordation tax (House Bill 1478 and Senate Bill 875).

On recommendation from the Virginia Housing Commission, the City of Danville is authorized to establish a pilot project by ordinance requiring that no deed with an assessed value of $50,000 or less may be recorded by the Clerk unless the Danville Director of Finance certifies that there are no liens against the property for unpaid taxes, interest, or fines owed to the City (House Bill 1699).19

In response to Evans v. Evans,20 and on the recommendation of the Boyd-Graves Conference, legislation was adopted to clarify that a husband and wife may own real or personal property as tenants by the entirety for as long as they are married (House Bill 2050). To sever a tenancy by the entireties by written instrument, the instrument must be a deed that is signed by both spouses as grantors of the property.21

DISCLOSURE

New disclosures are now required to be made to a purchaser by a seller of residential real property: whether the property is subject to one or more conservation or other easements (House Bill 2034); whether the property is subject to a community development authority approved by a local governing body (House Bill 2034); if the property is subject to the constraints of a historic district (Senate Bill 1037).

18 Under the bill, these school divisions may pay a single-project fee of up to $2.5 million and an

annual aggregate of $6 million. 19 The bill requires the City of Danville to make a written report to the Virginia Housing

Commission by May 31, 2020, and it expires on July 1, 2021. 20 Record No. 141277, 772 S.E.2d 576, 2015 Va. LEXIS 84 (2015). 21 The bill as enacted uses “husband and wife” in reference to tenancies by the entirety. The Code

still has inconsistencies with same-sex marriage. Or perhaps it’s the legislature.–ED.

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ECONOMIC DEVELOPMENT

Companion bills reduce the minimum size of industrial sites that may be included in the Virginia Economic Development Partnership Authority site and building assessment program from 250 acres to 100 acres (House Bill 1591 and Senate Bill 976).

In continued efforts to empower localities to address derelict and blighted buildings, localities may now petition the circuit court to appoint a land bank entity to act as a receiver (in limited circumstances) to repair derelict and blighted residential buildings (House Bill 1936).

Counties22 may now create economic revitalization zones to provide incentives to private entities to purchase real property to then make those parcels suitable for economic development (House Bill 1970).

The General Assembly imposed a 48-month moratorium on repayments allocated to a locality for a bonded project pursuant to the Economic Development Access Program (House Bill 1973 and Senate Bill 1591), if conditions of the Commonwealth Transportation Board's economic development access policy are met.23

The General Assembly also made significant changes to the Virginia Economic Development Partnership Authority, restructuring its Board (including establishing minimum qualifications) (House Bill 2471 and Senate Bill 1574).

The sunset date for the local gas severance tax dedicated to (i) the local Coal and Gas Road Improvement Fund, (ii) the Virginia Coalfield Economic Development Fund, and (iii) water, sewer, and natural gas systems and lines has been extended to January 1, 2020 (House Bill 2169 and Senate Bill 886).

FAIR HOUSING LAW

On a recommendation from the Virginia Housing Commission, two identical bills establish the rights and responsibilities under the Virginia Fair Housing Law (§ 36-96.1 et seq.) related to assistance animals and establish a process for submitting requests for reasonable accommodations (House Bill 2006 and Senate Bill 1228). The bills include definitions of "assistance animal," "major life activities," "therapeutic relationship," and "physical or mental impairment," (not all of which mirror the federal Fair Housing Act).24

FORECLOSURE

Several bills address the rights of tenants when the dwelling unit in which they reside has been foreclosed. Companion bills remove a provision from the Code of Virginia that allows a tenant to remain in a dwelling unit that has been foreclosed upon pursuant to the federal Protecting Tenants at Foreclosure Act (House Bill 1623 and Senate Bill 991).25 These bills also provide that the foreclosure of a residential rental property terminates the rental agreement of the prior owner, among other things (see also House Bill 2281 and Senate Bill 966, which have similar provisions, but also address the impact of foreclosure on written property management agreements).

22 This authority currently exists for Virginia cities. 23 The bills contain an emergency clause. 24 The bills provide that if any of its provisions are determined by the U.S. Department of Housing

and Urban Development to not be substantially equivalent or are otherwise inconsistent with the federal Fair Housing Act of 1968, those provisions are unenforceable.

25 The federal Protecting Tenants at Foreclosure Act expired on December 31, 2014 and is no longer in effect.

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The General Assembly also expanded the authority of localities to initiate the nonjudicial sale of unimproved real property valued at less than $5,000 if taxes are delinquent for at least three years, and of certain real property valued between $5,000 and $20,000 if certain other conditions are met (House Bill 1909).26

HOUSING AND REDEVELOPMENT

The governing body of a town may now authorize a housing authority to contract or acquire land for the construction of additional housing, or purchase construction materials for the construction or installation of sewers, streets, sidewalks, lights, power, water, or any other facilities for additional housing (House Bill 1585 and Senate Bill 1237).27

The General Assembly also extended the sunset dates (from July 1, 2017, to July 1, 2020) and expanded several measures related to various land use approvals initially adopted to address the housing crisis (House Bill 1697).28

INSURANCE

The Virginia Consumer Protection Act was amended to add an additional prohibited practice--a supplier may not engage in fraudulent, improper, or dishonest conduct in a transaction either (i) during a declared state of emergency, or (ii) to repair damage resulting from an event that prompted a declaration of a state of emergency (House Bill 1422 and Senate Bill 839).29

Insurance requirements for special conservators of the peace (SOPs) have been increased, and SOPs must now be covered by a personal injury liability insurance policy, property damage liability insurance policy, and miscellaneous casualty insurance policy (House Bill 1524).

Upon a recommendation from the Boyd-Graves Conference, an injured person, the personal representative of a decedent, or an attorney representing either may request the disclosure of the liability limits of a homeowner’s insurance policy or personal injury liability insurance policy prior to filing a civil action for personal injuries or wrongful death from injuries sustained at the residence of another person (House Bill 1641).

The Virginia Secretary of Natural Resources must issue a report by November 1, 2018, listing any locality that is not participating in the Community Rating System of the National Flood Insurance Program as well as recommending legislation necessary to encourage participation (House Bill 2319).

LANDLORD AND TENANT

A tenant is now financially responsible for the added cost of treatment or extermination of any insects or pests resulting from the tenant's unreasonable delay in reporting the existence of those insects or pests, or the tenant's failure to prevent the infestation (House Bill 1869).

The General Assembly made significant changes to the Virginia Residential Landlord and Tenant Act (§ 55-248.2 et seq.), conforming general landlord and tenant law relating to residential tenancies to the Act, including security deposits, lease terms, notice, and disclosure provisions (House Bill 2033). The legislation also addresses issues related to unclaimed security deposits, written statements of charges and

26 Current law permits the nonjudicial sale of unimproved real property valued at less than $10,000

if taxes are delinquent for at least three years and the property (a) measures less than 4,000 square feet or (b) has been determined to be unsuitable for building.

27 Current law already authorizes cities and counties to do the same. 28 Including, for example, subdivision plats, special use permits, and rezonings. 29 Applies whether or not the supplier is a licensed contractor.

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payments,30 criminal conduct, and deceased tenants, including the disposition of the property of a deceased tenant.

LAND RECORDS, COURT RECORDS, AND CIVIL CLERKS

Circuit court clerks may now send documents containing real property information to certain public officials electronically (or, in the alternative, provide electronic access to those documents) (House Bill 1515).

Clerks must now make a copy available to the Auditor of Public Accounts of the annual report the clerk is currently required to provide to the court stating the receipt of money by the clerk, (House Bill 1630).

A clerk of a circuit court that has established an electronic filing system for land records may now charge an additional fee (not to exceed $5 per instrument) for every land record filed by paper (House Bill 2035 and Senate Bill 870).

LIENS (MECHANICS’ AND OTHER)

Addressing the priority for a statutory lien for, among other things, the removal of trash, refuse and garbage, certain buildings (or structures) that endanger public health, or buildings (or structures) that harbor illegal drug use, the General Assembly clarified the priority of the lien is "on a parity with liens for unpaid local real estate taxes." (House Bill 1992 and Senate Bill 920).

The General Assembly also clarified the entities that may become lienors when (1) someone is injured, (2) the injury is caused by the alleged negligence of another, and (3) the person receives emergency medical services and transportation provided by an emergency medical services vehicle (Senate Bill 867).

Code of Virginia provisions related to water and sewer services provided to lessees or tenants of real property have been separated from Code of Virginia provisions regarding water and sewer services provided to owners of real property (Senate Bill 1189). The legislation further provides that no lien can be placed on the property of an owner when a lessee or tenant has delinquent fees for water or sewer charges until the locality has made reasonable collection efforts and practices (as described therein).

MANUFACTURED HOUSING

If a landlord does not remedy a violation of a health and safety ordinance affecting tenants in a manufactured home park within seven days of receiving notice from the locality of the violation, the locality must notify tenants of the manufactured home park who are affected by the violation (Senate Bill 1123).

Park model recreational vehicles are excluded from the definition of "manufactured home."31

30 In lieu of an accounting as required by current law. 31 A park model recreational vehicle is a vehicle that is (i) designed and marketed as temporary

living quarters for recreational, camping, travel, or seasonal use; (ii) not permanently affixed to real property for use as a permanent dwelling; (iii) built on a single chassis mounted on wheels; and (iv) certified by the manufacturer as complying with the American National Standards Institute (ANSI) A119.5 Park Model Recreational Vehicle Standard.

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PROFESSIONS AND OCCUPATIONS

Licensed residential real estate appraisers, certified residential real estate appraisers, and certified general real estate appraisers are now authorized to provide an evaluation of real estate in connection with certain real estate-related financial transactions (House Bill 1556 and Senate Bill 1535).32

In lieu of a new class of registered contractors for certain project contractors engaged in low-cost projects under the supervision of licensed contractors, the General Assembly established an exempted class of contractors from licensure—those persons providing construction, remodeling, repair, improvement, removal, or demolition valued at $2,500 or less per project on behalf of a properly licensed contractor (House Bill 1979 and Senate Bill 1193). The legislation also clarifies that a contractor that directly employs or otherwise contracts with a person who is not licensed or fails to maintain a license for work that requires a license is responsible for any resulting fines or penalties.

Changes to home inspection standards have been made by the General Assembly—whenever a home inspector observes any shade of yellow shaded corrugated stainless steel tubing during the inspection of a home built before May 1, 2008, the inspection report must note its existence with a statement that "Manufacturers believe that this product is safer if properly bonded as required by the manufacturer's installation instructions. Proper bonding of the product should be determined by a contractor licensed to perform the work in the Commonwealth of Virginia." (Senate Bill 812).

To streamline the process for contractors, the General Assembly adopted legislation providing that applicants for Class A and Class B contractor licenses may now demonstrate financial responsibility by posting a surety bond for both initial application for licensure and subsequent renewals in lieu of providing a financial statement (Senate Bill 1113). The bill also provides a process for recovery on a surety bond of a contractor who has elected to post such a bond and amends the Virginia Contractor Transaction Recovery Act.

A professional engineer has been added to the membership of the Board for Contractors (Senate Bill 1374).

Appraisal management companies must now compensate an appraiser within 30 days of the initial delivery by the appraiser of the completed appraisal report (Senate Bill 1573).33

PROPERTY AND CONVEYANCES

The General Assembly authorized the Department of Conservation and Recreation to convey certain real property in Stafford County to the Widewater Beach Subdivision Citizens Association, Inc. (House Bill 1691).

When any owner of land that is subject to proffers applies for amendments to proffered conditions, notice must be given to those directly affected by the amendment (House Bill 1797).

To address issues created by short-term rentals, the General Assembly authorized localities to adopt an ordinance requiring the registration of persons offering property for short-term rental, with the bill defining “short-term rental” (Senate Bill 1578).34 The bill amends the Alcoholic Beverage Control (ABC) Act to clarify that certain property rented on a short-term basis is considered a bed and breakfast

32 Evaluations in these types of transactions could be performed only by an employee of a financial

institution or lender in these types of transactions under current law. 33 Except in the case of breach of contract or noncompliance with the conditions of the engagement

or performance of services that violate the Uniform Standards of Professional Appraisal Practice. 34 The bill defines "short-term rental" as the provision of a room or space suitable for sleeping or

lodging for less than 30 consecutive days in exchange for a charge for the occupancy.

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establishment for purposes of ABC licensing and that the exception from ABC licensing for serving alcoholic beverages to guests in a residence does not apply if the guest is a short-term lessee of the residence.

PROPERTY, GROUNDS AND BUILDINGS (STATE-OWNED)

The General Assembly added an additional exception for real property to be held in trust for the benefit of a state-recognized Indian tribe to a requirement that the agency follow guidelines adopted by the Department of General Services, and to obtain prior approval of the Governor before that state agency acquires real property (House Bill 1952).

The Department of General Services must now conduct public sales or auctions of the surplus property35 from the General Assembly Building replacement project (Senate Bill 1588).36

REAL PROPERTY TAX

The governing body of any county, city, or town may now, by ordinance, provide for the partial exemption from taxation of real estate for the rehabilitation of a structure, at least fifteen years of age, for commercial use in technology zone (House Bill 1455).37

Localities may not require any taxpayer who is a lessor of real property to produce the lease to determine if the property is eligible for special assessment for land preservation (House Bill 1476).

In a bill that may affect only Arlington County,38 the Arlington County Board of Equalization of Real Estate Assessments must now be composed of an odd number of not less than three nor more than 11 members (House Bill 1820).

Localities are now authorized to exempt from taxation the primary residence of the surviving spouse of a law-enforcement officer, firefighter, search and rescue personnel, or emergency medical services personnel who is killed in the line of duty (House Bill 1884).39

The General Assembly authorized Stafford County, by ordinance, to restrict the deferral of real property taxes for taxpayers whose tax levy for 2016 exceeded the tax levy for 2015 by at least 25 percent because of improvements made to adjacent property by Stafford County (House Bill 2219 and Senate Bill 1248).

RESOLUTIONS AND STUDIES

The General Assembly adopted several commemorating and related resolutions:

The last Saturday of September in 2017 and in each succeeding year is to be known as Public Lands Day in Virginia (House Joint Resolution 640).

35 For purposes of this legislation, "surplus property" means any personal property including, but

not limited to, all fixtures, furnishings, materials, supplies, equipment, and recyclable items that are determined to be salvageable surplus property as agreed to by the Clerk of the Senate and the Clerk of the House of Delegates.

36 The bill contains an emergency clause and is now effective. 37 Currently, the fifteen-year age minimum applies only to structures located in an enterprise zone

designated by the Commonwealth. 38 The legislation includes a limited scope of application with a very specific definition. 39 House Bill 1884 is made pursuant to Article X, Section 6-B of the Constitution of Virginia, which

was adopted by the voters in 2016.

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The Hampton Roads Association for Commercial Real Estate was commended on its 25th anniversary of providing education, advocacy, and professional growth to its members and the broader commercial real estate industry (House Joint Resolution 713).

AHC Inc., formerly the Arlington Housing Corporation, was commended on the 40th anniversary of its founding and four decades of providing affordable housing for families with low and moderate incomes in Northern Virginia and the greater Washington, D.C., region (House Joint Resolution 862).

The Honorable Michèle B. McQuigg of Prince William County, a lifelong public servant who represented the 51st District in the Virginia House of Delegates and ably served as clerk of the Prince William Circuit Court, passed away on February 15, 2017. The General Assembly noted, with great sadness, the loss of a distinguished public servant who made lasting contributions to Prince William County and the Commonwealth (House Joint Resolution 1086).

Two common interest community associations, Burke Centre Conservancy (House Joint Resolution 1042) and Lake of the Woods Association, Inc. (Senate Joint Resolution 286), were commended on their anniversaries.40

TAXATION

Goochland, Powhatan, and Warren Counties have been added to the list of counties authorized to impose a transient occupancy tax, if any excess over two percent is designated and spent solely for tourism purposes (House Bill 1415).41

The General Assembly modified requirements for the allocation of available Neighborhood Assistance Act tax credits (House Bill 1433).

A locality’s governing body and treasurer may now publish lists of certain local delinquent taxes, whether or not they are based on information as it exists at the end of the fiscal year (House Bill 1463).

Localities may now create green development zones that provide tax incentives and regulatory flexibility to a business operating in an energy-efficient building, or to a business producing products used to reduce negative impact on the environment (House Bill 1565).

Proposals submitted by any neighborhood organization for an allocation of tax credits must include a list of all localities in which the organization provided services during the prior program year (House Bill 1838). The Virginia Department of Education is directed to aggregate the information from the proposals and submit that information to the Chairmen of the House Committees on Appropriations and Finance, Senate Committee on Finance, and to the Joint Subcommittee to Evaluate Tax Preferences.

The Commissioner of Social Services and the Superintendent of Public Instruction must consider the past performance of organizations requesting Neighborhood Assistance Act tax credits using accountability measures established in regulations and guidelines (Senate Bill 1165).

Provisions of the Neighborhood Assistance Act Tax Credit program have been reorganized to set out separate sections for the portions of the program administered by the State Department of Social Services and the Department of Education to provide clarity in the application and allocation process (Senate Bill 1168).

40 Forty years for Burke Centre Conservancy and fifty years for Lake of the Woods Association,

Inc. 41 Under current law, all counties are authorized to impose such tax at a rate not to exceed two

percent, and specified counties may impose the tax at a rate not to exceed five percent.

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The General Assembly defined "qualified zone expenditures" (for the purposes of enterprise zone grants and tax credits) to include certain expenditures regardless of whether the expenditure is considered properly chargeable to a capital account or deductible as a business expense under federal Treasury Regulations (Senate Bill 1328).

TRANSPORTATION

Prior to the adoption of (or amendment to) any comprehensive plan that substantially affects transportation on state-controlled highways in Northern Virginia, the Virginia Department of Transportation must specify (by name and location) any minor artery (or higher classification) for which an increase of traffic over the capacity of the artery is exceeded because of the plan (House Bill 2138).

The disposal of real property by a locality for the conveyance of utility easements related to transportation projects no longer requires a public hearing (Senate Bill 932).

WATERS OF THE STATE, PORTS, AND HARBORS

The Virginia Beach Wetlands Board is now authorized to adopt a General Permit for Sand Management and Placement Profiles for properties in the Sandbridge Beach Subdivision of Virginia Beach and authorizes the Norfolk Wetlands Board to adopt a General Permit for Sand Management and Placement Profiles for properties in the City of Norfolk (House Bill 1517).

The Director of the Department of Conservation and Recreation is authorized to disburse grants or loans from the Dam Safety, Flood Prevention and Protection Assistance Fund to a local government or private entity to protect public safety and welfare (House Bill 1562).42

Certain oyster ground leaseholders in the Lynnhaven River are subject to the conduct of approved municipal dredging projects to restore existing navigation channels (House Bill 1796 and Senate Bill 1143).43

WATER, SEWER AND STORMWATER

Any locality that establishes a stormwater management utility must provide a waiver44 of charges for a person whose approved stormwater management plan shows stormwater produced by the property will be retained and treated on site (House Bill 1597).

The State Water Control Board must incorporate general permitting procedures that will, every 10 years (beginning in 2020 and, in certain other instances, 2030), (i) review load allocations to determine whether changes in the use of a facility have reduced nutrient discharges and (ii) determine the need for reallocations (House Bill 1619).

The Commonwealth Center for Recurrent Flooding Resiliency is directed to convene a work group to consider alternative methods of stormwater management in rural Tidewater localities, among other things (House Bill 1774).45

The General Assembly authorized the hiring of Certified third-party professionals to administer any or all aspects of a program for the management of stormwater and erosion, including plan review and

42 Grant money may be used for the design, repair, and safety modifications of dams identified in

safety reports. 43 The bill has an expiration date of July 1, 2019. 44 Full or partial. 45 House Bill 1774 also delays the effective date of new stormwater laws enacted during the 2016

Session of the General Assembly to July 1, 2018.

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inspection (but excluding enforcement), on behalf of the State Water Control Board or a locality approved by the State Water Control Board, or a stormwater management program authority (a locality, a state entity, or another type of entity) (House Bill 2009).

The State Water Control Board is directed to adopt regulations requiring that a licensed professional sign and seal all final plan elements, specifications, or calculations whose preparation requires a license in engineering, architecture, soil science, or a related profession (House Bill 2076 and Senate Bill 1127).46

The Virginia Department of Environmental Quality is directed to identify the owner of any combined sewer overflow outfall that discharges into the Chesapeake Bay Watershed and to determine what actions by the owner, if it is not under a state order, are necessary to bring such an outfall into compliance with Virginia law, the federal Clean Water Act, and the Presumption Approach described in the CSO Control Policy of the U.S. Environmental Protection Agency (House Bill 2383 and Senate Bill 898).

The Virginia Department of Health is directed to take certain steps to begin eliminating site evaluation and design services for certain onsite sewage systems and private wells (House Bill 2477).

The Department of Health is required to evaluate the need for 180-day biochemical oxygen demand sampling of small alternative onsite sewage systems for certain sewage uses (Senate Bill 1577).47

ZONING AND LAND USE

The General Assembly clarified that provisions related to a limitation on the award of appeal costs against a locality (unless the locality acted in bad faith) also apply to the governing body (House Bill 1994).

A local treasurer may give authorization when a land use applicant is required to first provide satisfactory evidence that various taxes or charges have been paid (House Bill 2469).

In legislation that is, by its terms, not to be retroactively applied, a zoning ordinance may provide a structure is nonconforming, but shall not provide the structure is illegal and subject to removal if the structure required no permit, a local government official informs the property owner that the structure will comply with the zoning ordinance, and the improvement was thereafter constructed (Senate Bill 1173).

The General Assembly established a uniform procedure for approval and installation of small cell facilities on existing structures in public rights-of-way (Senate Bill 1282).

Certain notices from the board of zoning appeals must be provided the recipient by registered mail to the last known address or usual place of abode of the property owner or its registered agent, if any, prior to the commencement of the 30-day appeal period (Senate Bill 1559).

CONCLUSION

While health care, the economy, the environment, and education continue to dominate discussion of the General Assembly, legislation affecting real estate practitioners continues to be introduced and adopted every session. Although only a dozen (or so) adopted bills address traditional issues in “real estate law,” more than one hundred bills impact areas of the law routinely encountered by real estate practitioners. I hope these summaries are helpful to your firms, practices and practice groups.

46 The legislation requires the regulations to be effective no later than July 1, 2018, and exempts

them from certain provisions of the Administrative Process Act. 47 The Department of Health must report its findings to the Chairmen of the House Committee on

Health, Welfare and Institutions and the Senate Committee on Education and Health by December 1, 2017.

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VIRGINIA REAL ESTATE CASE LAW UPDATE (SELECTED CASES)

by Otto Konrad and Ray W. King*

I. VIRGINIA SUPREME COURT CASES

A. Bank of Hampton Roads v. Powell, 292 Va. 10, 785 S.E.2d 788 (2016)

Facts: The Bank of Hampton Roads (“Bank”) appeals the trial court’s imposition of a constructive trust on a subdivision lot in favor of Ethel B. Powell (“Powell”) after a developer breached its contract to convey a different property to her. In 2003, “3 MAC,” a subdivision development company, offered to purchase Powell’s land and house in the City of Chesapeake in order to include it in a subdivision it was developing, to be known as North Rollingwood Estates. In 2003, Powell signed a contract to convey her property to 3 MAC in exchange for $265,000 and “one (1) lot to be mutually agreed upon by both Buyer and Seller in writing.” Powell conveyed her land to 3 MAC in 2004, and in 2005, Powell and 3 MAC added an addendum stipulating that the lot Powell would receive was the lot designated as Lot 1 on the preliminary subdivision plat for North Rollingwood Estates.

Instead of conveying Lot 1 to Powell, 3 MAC sold the lot to Ashdon Builders, Inc. (“Ashdon”) for $110,000. Powell sued 3 MAC, Ashdon and the Bank, alleging breach of contract and fraudulent conveyance, and seeking a constructive trust upon Lot 1. Powell then settled her claim against Ashdon.

Lower Court Proceedings: The circuit court dismissed Powell’s claim against Ashdon with prejudice, thus releasing her claim to Lot 1. Powell continued to pursue her claims against 3MAC and the Bank, and since she could no longer assert a claim against Lot 1, Powell asked the trial court to impose a constructive trust on “Lot A,” the remaining land owned by 3 MAC which had not yet been sold, and that the constructive trust be superior to the Bank’s existing deed of trust.

After a bench trial, the trial court held that Powell had established by clear and convincing evidence that she was entitled to a constructive trust upon Lot A because the Bank had actual knowledge of Powell’s right to a lot in the subdivision, and the Bank’s wrongdoing robbed Powell of possession of Lot 1 per her contract with 3 MAC. After denying the Bank’s motion to reconsider, the trial court entered final judgment against the Bank, 3 MAC, and its manager-members. The trial court imposed a constructive trust upon Lot A and decreed that 3 MAC II, LLC convey the property to Powell free and clear of any liens or encumbrances and that the Defendants release any lien, encumbrance or claim to the property. The trial court also stated that if Powell did not receive Lot A pursuant to the constructive trust, then she would have judgment against Defendants 3 MAC II, LLC, Charles V. Hostetler and Michael W. Hanley, jointly and severally, in the amount of $110,000. The Bank and Trustees appeal.

Holding: The Supreme Court of Virginia reversed the trial court’s judgment to impose a constructive trust upon Lot A, but affirmed the award of $110,000 against 3 MAC, Hostetler, and Hanley.

Discussion: The Court reviewed the case de novo, citing Crestar Bank v. Williams1 that in order to be entitled to the benefit of a constructive trust, a claimant’s interest must be distinctly traced into the chose in action, fund, or other property, which is to be made the subject of the trust. Crestar Bank involved multiple victims of investment fraud who sought recovery against the few remaining assets of a man who ;perpetuated a Ponzi scheme; the Court held that the trial court erroneously imposed a constructive trust in favor of the defrauded investors with priority over all record and judgment creditors, because the investors

* From the 35th Annual Real Estate Practice Seminar, co-sponsored by the Real Property Section and Virginia CLE. Presenters Otto Konrad, of Williams and Mullen, and Ray W. King, of LeClair Ryan, gratefully acknowledge and express their appreciation to Veronica Van Den Abeelen of Williams Mullen and Jean Mumm of LeClairRyan for their assistance in preparing this outline.

1 Crestar Bank v. Williams, 250 Va. 198, 462 S.E.2d 333 (1995).

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failed to trace the funds they had invested into the remaining assets, and thus, each investor-beneficiary was merely a general creditor.

The Court found that in the present case, Powell failed to trace her claim to Lot A, the subject of the constructive trust, because the contract provided that she would receive Lot 1. The Court stated that unlike money, land is not fungible, and that even if Lot 1 and Lot A were identical in shape and size, Powell would have no equitable claim to Lot A. Because 3 MAC sold Lot 1 to Ashdon in 2012, it breached its contract with Powell, and Powell was therefore entitled to damages, not a constructive trust.

B. City of Chesapeake v. Dominion SecurityPlus Self Storage, L.L.C., 291 Va. 327, 785 S.E.2d 403 (2016)

Facts: In 2001, Nathan and Margaret Eure sought to subdivide property on Dominion Boulevard in the City of Chesapeake for their contract purchaser, Dominion SecurityPlus Self Storage, L.L.C. (“Dominion”), which wanted to develop a self-storage facility. As a requirement of approving the subdivision, the City required the Eures to obtain a variance because of (1) insufficient frontage on Dominion Boulevard, and (2) a reservation for a 50-foot right-of-way in favor of the City for future expansion of Dominion Boulevard. To comply with the City requirements, the subdivision plat contained Note 7:

The owner and/or their heirs, assigns, lessee, grantees or successors in interest agrees to reserve for future purchase by the City the area hereby designated on the plat and shall convey same to the city by deed … The purchase value of said area is to be based on the fair market value on the date the City exercises its right to purchase the area designated as reserved with no compensation for any improvements placed within the area. The owners agree that it shall not make or have any claims for damage to the said improvements or damages to the residue [of] the owners’ property by reason of the said purchase.

Also, the variance approval included a stipulation that the existing access to Dominion Boulevard may be closed in the future and that access to the property would be by an access road to the rear of the property.

Dominion acquired the property in 2002 and the deed provided “subject to all of the terms, conditions, rights, obligations restrictions, easements reservations set forth in the duly record[ed] deeds, plats, declarations and other instruments constituting constructive notice in the chain of title to the property.”

The Dominion Boulevard Improvements Project began in 2011. At that time, the City acquired (by certificate of take) a fee interest for right of way, a utility easement and a temporary construction easement. Portions of the easements (1,361 sq. ft. of utility easement and 537 sq. ft. of temporary construction easement) were not within the reservation area. Further, after construction, the self-storage facility was no longer visible from Dominion Boulevard and the property no longer had direct access to Dominion Boulevard--access was via a service road.

Lower Court Proceedings: The City initiated the condemnation action in the Circuit Court of the City of Chesapeake. The City filed three motions in limine on which the trial court ruled: (1) the area outside of the reservation was not subject to Note 7 on the subdivision plat; (2) the loss of visibility was the result of the project as a whole, and Dominion could present evidence of damages resulting from loss of visibility; and (3) the stipulation in the variance was not valid and Dominion could present evidence of damages to the residue from the loss of direct access to Dominion Blvd.

Following a bench trial, the Court awarded Dominion $44,141.00 for the value of the take, and $2,156,789.18 for damages to the residue, including damages for loss of visibility and loss of direct access.

Holdings: The Supreme Court reversed the award of damages for loss of visibility and loss of direct access of $2,156,789.18 and entered final judgment for the City.

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Discussion: The Supreme Court agreed with the Circuit Court that Note 7 on the subdivision plat created a contract between the City and the Eures that was binding on all subsequent owners. The Circuit Court found that Note 7 waived only the right to claim damages that were foreseeable at the time the plat was recorded. The Supreme Court read the contract terms as written and found that the waiver of “any claim . . . for damages to the residue [of] the owners’ property by reason of the said purchase” [emphasis added by the Court], included all damages to the residue, including loss of visibility and loss of direct access to Dominion Blvd. The Supreme Court also concluded that the waiver in Note 7 was not voided by the acquisition of easements outside of the reservation area, but the waiver did not apply to the additional acquisitions. The property owner did not present evidence as to what part of its damages claim was attributable to the take outside of the reservation area and what part was attributable just to the take within the reservation area. Because of the failure of proof, the Supreme Court reversed the entire award for damages to the residue.

The Supreme Court reserved and did not address the issue of whether and to what extend a loss of visibility to the residue is compensable in a condemnation proceeding.

C. Cygnus Newport–Phase 1B, L.L.C. v. City of Portsmouth, 292 Va. 573, 790 S.E.2d 623 (2016).

Facts: Property owner Cygnus Newport, LLC filed a complaint against the City of Portsmouth and Community Development Authority (“CDA”) claiming that a special assessment lien recorded after a deed of trust was extinguished by a foreclosure sale, and that the special assessments were void.

The prior owner of the property, Portsmouth Venture One, LLC, acquired title to a 176-acre parcel in Portsmouth, and on the same day granted a deed of trust on the property to Bank of America in order to secure two notes. The deed and deed of trust were recorded on August 11, 2004. Per the owner’s petition, the City enacted an ordinance creating a CDA. The CDA entered into a Special Assessment Agreement with the prior owner, signed by the City and the CDA. Under the agreement, the special assessments were to be apportioned and paid each year, and the payments were pledged to repay the bonds. The prior owner agreed that the special assessment did not exceed the particular benefit to the Assessed Property resulting from the Improvements and that successors would be bound by the agreement.

In January 2006, the CDA authorized the issuance of special assessment bonds and signed an agreement with the City and the prior owner authorizing the issuance of bonds to fund improvements. The City enacted an ordinance in February 2006 that established special assessments on properties in the CDA district, imposed the special assessments as a lien on the properties, and approved the Special Assessment Agreement. The CDA docketed the abstract of the ordinance in the circuit court on March 23, 2006. On April 27, 2006, the prior owner and CDA signed a Declaration of Notice of Special Assessment, which was recorded in the circuit court on May 4, 2006. The declaration states that its provisions would run with the land and bind any and all who acquired any interest in the property. The prior owner also stated that the special assessment lien did not exceed the benefit to the Assessed Party. The bond was issued in May 2006.

On December 22, 2011, Bank of America sold the notes it held to Cygnus VA, LLC, and assigned it a deed of trust. The prior owner defaulted and Cygnus VA instructed the trustee to foreclose on the property. Cygnus VA was the successful bidder at the sale, and conveyed the property to Cygnus Newport, LLC, which allocated the foreclosed property to the current owners. Cygnus Newport filed a claim that the special assessment lien was extinguished by the foreclosure sale, and alleged that the special assessments were void because, although the parcels acquired through the foreclosure sale were largely unimproved and underdeveloped, no CDA bond funds remained to construct additional improvements. It also argued that the special assessments grossly exceeded the specific benefits of the improvements to the remaining portion of the parcel of land, and should be declared void except to the extent the benefit of the abutting improvements increased the value of the property. The CDA and City filed a motion to dismiss, a demurrer, and four pleas in bar.

Lower Court Proceedings: The circuit court dismissed the complaint with prejudice.

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Holding: On appeal, the Supreme Court affirmed the circuit court’s judgment, holding that special assessment liens have priority over previously recorded deeds of trust, that the special assessment lien was enforceable against the property owner, and that his belated challenge to the special assessment was foreclosed.

Discussion: The Supreme Court reviewed the judgment de novo, beginning with the general proposition that under a race-notice statute, the first to record an interest in real estate has priority over those who record subsequently. The Court concluded that a special assessment lien has priority over a previously recorded deed of trust, citing City of Richmond v. Williams & Bowe2 for the holding that unless otherwise directed by statute, a special assessment lien is paramount to all other interests, including prior mortgages or other liens thereon, and is not extinguished by a sale of the property under a preexisting judgment or decree.

Cygnus Newport argued that the current statutory scheme displaces City of Richmond because in a race-notice jurisdiction, the first party to record has priority over those who do not record or who record later. According to Cygnus Newport, because Bank of America recorded its deed of trust before the special assessment lien, and was therefore senior in lien priority, the foreclosure of the Bank of America deed of trust extinguished the special assessment lien.

The Court found that by operation of law, as the City filed an abstract of the ordinance authorizing the improvements, the lien became enforceable against any person, including subsequent purchasers deemed to have had notice of the assessment. The Court held that the Code would only render a lien void against a purchaser for consideration when an abstract of the resolution or ordinance was not docketed and the purchaser otherwise had no notice. It also held that the voiding provision of the Code only applies if the abstract of the resolution or ordinance is not docketed. Because Cygnus Newport had notice of the assessment and the lien when it acquired the deed of trust and the property at foreclosure, the Court held that the lien was enforceable against Cygnus Newport. Additionally, the voiding language was inapplicable as the abstract of the resolution or ordinance was docketed.

As additional support for why a special assessment lien has priority over other liens in the Commonwealth, the Court pointed to a section of the Code that provides that “any assessments made pursuant to this section may be made effective as a lien upon a specified date, by ordinance, but such assessments may not thereafter be modified.” The Court agreed with the City that a finding that the special assessments were extinguished by the foreclosure sale would constitute a modification in a manner inconsistent with the underlying debt instruments, and a foreclosure sale that vaporizes the special assessment lien would constitute a de facto modification of the assessment in a manner inconsistent with the terms of the debt instruments. The Court held that voiding the lien would render the assessment a nullity, rejecting Cygnus Newport’s argument that this reading renders it unconstitutional because it deprives existing creditors of their property right. The Court stated that for over 100 years, the law of Virginia has been that a special assessment lien has priority over other liens and that no express statutory provision is required to effectuate this result. Therefore, because Cygnus Newport’s claim to priority over the special assessment lien was “never in its property rights bundle of sticks, no stick was taken out of that bundle.”

The Court also held that the Code imposes time constraints upon those who would challenge the issuance of the bonds. Section 15.2-5158(A)(2) of the Code provides that for a period of 30 days after the date of filing with the circuit court, any person in interest may contest the validity of the bonds – but if such contest is not brought within 30 days, the authority to issue the bonds, the validity of the pledge of revenues necessary to pay the bonds, and the validity of any other provision contained in the instruments and all proceedings in connection with the issuance of the bonds shall be conclusively presumed to have been legally taken. The Court determined that a declaration that the special assessments are void when the special assessments are pledged to repay bonds would run directly counter to these strictures, and that Virginia law forecloses Cygnus Newport’s belated challenges because it filed suit approximately 9 years after the special assessments were imposed and the bonds issued.

2 City of Richmond v. Williams & Bowe, 102 Va. 733, 47 S.E. 844 (1904).

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D. Dye v. CNX Gas Co., 291 Va. 319, 784 S.E.2d 703 (2016)

Facts: This case considers whether a conveyance of “minerals” in a deed conveys the natural gas and also the coal bed methane (collectively, “gas”). Nella Kate Martin Dye (“Dye”) is a successor in title to property interests retained by the grantors of two disputed severance deeds executed in 1886 and 1887 (collectively the “Deeds”). She alleges that she owns the gas underlying her land, and seeks a determination that the term “minerals” used in the two severance deeds neither intended nor actually severed or conveyed such gas. The 1886 deed conveys “all the coal and minerals” underlying the land, and the 1887 deed conveys “all the coal & other minerals” underlying the land.

Buckhorn Coal Co., LP (“Buckhorn”) is a successor in title to the coal and mineral property interests conveyed (to the same grantee) in the Deeds,. Buckhorn purportedly leased certain oil and gas rights on the property, including the coal bed methane, to CNX Gas Company, LLC (“CNX”). Buckhorn and CNX filed demurrers to Dye’s complaint, asserting that under Virginia law, a conveyance of all “minerals” includes the gas.

Lower Court Proceeding: The circuit court sustained demurrers to Dye’s complaints, holding that the conveyance of “minerals” includes gas as a matter of law. The circuit court based its decision on the Supreme Court’s holding in Warren v. Clinchfield Coal Corp.3, where the Court held that the conveyance of “all the coal and minerals of every description” in an unambiguous severance deed included the “petroleum, oil and gas [as] minerals.” The circuit court determined that the present Deeds were unambiguous, and found nothing to show a contrary or less comprehensive meaning of the term “minerals” in either deed. Dye filed an amended complaint to include a paragraph mostly of argument, and Buckhorn and CNX filed demurrers to the amended complaint, asserting the same grounds as when demurring to the original complaint. The circuit court sustained the demurrers and dismissed the action. Dye appeals, arguing that the term “minerals” is ambiguous, and therefore, extrinsic evidence would have shown that the grantors did not intend to convey the gas.

Holding: The Supreme Court affirmed the judgment of the circuit court, concluding that the two Deeds at issue conveyed the gas as a matter of law.

Discussion: The Supreme Court reviewed the circuit court’s judgment de novo, beginning with the settled rule that if, in construing a deed, the Court determines that the deed is plain and unambiguous, the Court cannot search for its meaning beyond the instrument itself. The Supreme Court cited the “overwhelming majority rule” adopted in Warren that a conveyance, exception or reservation of “minerals” in a severance deed includes the oil and gas, absent other language in the deed, or extrinsic evidence indicating a different intention (where the deed is sufficiently ambiguous to permit the introduction of such evidence). In Warren, the Court held that a conveyance of “all the coal and minerals of every description” included the gas.

The Court concluded that the conveyances at issue in the present case of “all the coal and minerals,” and “all the coal & other minerals” were indistinguishable from the conveyance of “all the coal and minerals of every description” in the deed at issue in Warren. Thus, the Court held that the term “minerals” in the Deeds conveyed the gas as a matter of law, having found that nothing within the four corners of the Deeds showed a contrary or less comprehensive meaning of the term “minerals” which would exclude conveyance of the gas.4

E. EMAC, L.L.C. v. Cnty. of Hanover, 291 Va. 13, 781 S.E.2d 181 (2016)

Facts: In 2012-2013, Dominion Land and Development Corporation (“Dominion Land”) and Northlake Land Investments, LLC (“Northlake”) intended to build a new mixed use development off I-95 in Hanover County, to be known as “Northlake Park.” Craig Realty Group (“Craig Realty”) wanted to build an outlet

3 Warren v. Clinchfield Coal Corp., 166 Va. 524, 186 S.E. 20 (1936). 4 Under Pennsylvania law, oil and gas are not included in a conveyance or reservation of

“minerals.”—Ed.

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mall to be known as “Outlets at Richmond” in the project. In May 2012, Dominion Land and Northlake submitted an application for a conditional use permit (“CUP”) for two LED “destination commerce signs” advertising the outlet mall, to be located within Northlake Park. The southernmost of the two signs (“southern sign”) was to be on property owned by EMAC, L.L.C. (“EMAC”); EMAC and Craig Realty had entered into a non-binding letter of intent for a proposed sale of the sign site to Craig Realty.

On July 25, 2012, the CUP was approved by the Hanover County Board of Supervisors (“Board”). The approval contained several conditions, including the limitation that construction of the signs could not begin until building permits were issued for the outlet mall and that the CUP would expire in one year if no substantial construction had taken place. On June 4, 2013, Dominion Land requested an extension of the CUP, and a one year extension was approved on July 24, 2013.

EMAC and Craig Realty were unable to agree upon terms for the sale of the sign site. On February 24, 2014, ENAC requested an extension of the CUP for the southern sign. On May 8, 2014, Northlake requested an extension of the CUP for the other sign. On May 5, 2014, Craig Realty filed an application for a CUP for the southern sign to be in a different location, on the outlet mall property. The Board approved Northlake’s request to extend the CUP for the one sign, but denied EMAC’s request to extend the CUP for the southern sign.

EMAC filed an action against Hanover County and the Board in Hanover County Circuit Court alleging that the refusal of its extension request was arbitrary and capricious, and that the County had discriminated against EMAC in favor of Northlake, requesting damages of $6,900,000 plus attorney fees, expert witness fees, and costs.

Lower Court Proceedings: Defendants filed a Demurrer and Motion to Dismiss to EMAC’s amended Complaint. The Circuit Court sustained the Demurrer finding: (i) EMAC was required to prove that the existing zoning ordinance was unreasonable as applied to its property, and it failed to allege any facts to satisfy this requirement; (ii) the Board’s decision was supported by a rational basis and was fairly debatable; (iii) EMAC’s compliance with the CUP was not feasible; and (iv) the Board intended that the outlet mall developer intended to control both signs. EMAC appealed the decision.

Holdings: The Supreme Court affirmed the decision of the Circuit Court.

Discussion: The decision of a locality on a CUP is presumed valid and will not be altered by a court absent “clear proof that the action is unreasonable, arbitrary, and bears no reasonable relation to the public health, safety, morals or general welfare.” If probative evidence of unreasonableness is presented, the locality must then present sufficient evidence to show that the reasonableness of the decision is “fairly debatable.” An issue is fairly debatable when evidence offered in support of the opposing views would lead objective and reasonable persons to reach different conclusions. A landowner challenging the denial of a CUP must prove that the denial was unreasonable by showing not only that the requested use was reasonable, but also that the existing zoning ordinance is unreasonable as applied to the land at issue. EMAC did not make these allegations, but instead alleged that the Board discriminated against it in denying its application for an extension. An impermissibly discriminatory decision is unreasonable regardless of whether the existing zoning ordinance is reasonable as applied to an applicant’s land. If an applicant makes such a showing, then the locality has the burden to provide that there was a rational basis justifying the discriminatory action, thus satisfying the fairly debatable requirement. The Supreme Court agreed with the Circuit Court that Northlake and EMAC are not similarly situated parties, for the following reasons:

(i) Northlake was an applicant for the CUP, and EMAC was not. In fact, the application for the CUP did not include permission from the property owner, EMAC, thus the CUP as to the southern sign was “void ab initio.”

(ii) There was no agreement between EMAC and Craig Realty for the sale of the sign site or agreement for the sign to be located on EMAC property.

(iii) Craig Realty had applied for a new CUP for the southern sign to be at a different location.

Thus, the County’s decision was “fairly debatable” and supported by a rational basis.

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Justice Powell dissented.

F. Hamm v. Hazelwood, 292 Va. 153, 787 S.E.2d 144 (2016)

Facts: In 1989, Dorothy Hamm, by deed of gift, conveyed her one-half interest in a parcel of property to her sister, Melba Clarke. The deed contained the following provision:

The PROPERTY hereby conveyed shall AUTOMATICALLY REVERT to Dorothy Bigelow Hamm . . . in the event Reginal Wayne Clarke, son of [Melba Clarke], . . . ever acquires an interest therein by grant, inheritance or otherwise . . . .

Dorothy Hamm died in 2004. Melba Clarke died in 2012 leaving six children and three grandchildren, including Reginald, as her heirs.

The Administrator of the Estate of Melba Clarke filed a petition for aid and direction in the Circuit Court of Fairfax County seeking a declaration that the clause in the deed was void as an impermissible restraint on alienation.

Lower Court Proceedings: The trial court found that the “possibility-of-reverter contained in the Deed of Gift” was void and unenforceable under Virginia law and struck the clause from the conveyance.

Holdings: The Supreme Court reversed, stating that the possibility of reverter in the deed of gift was a reasonable restraint on alienation and enforceable.

Discussion: Virginia law treats a deed with no words of limitation as a transfer of a fee simple interest, unless a contrary intention appears, such as a contingent reversionary interest. However, common law did not recognize unreasonable restraints on alienation; that is, one that is general as to time and person. A restraint is reasonable if limited in duration and the numbers of persons to whom transfer is prohibited. The Supreme Court found that the language in the deed of gift created a possibility of reverter in Dorothy Hamm and her heirs upon the happening of a condition subsequent, which was reasonable.

G. Holtzman Oil Corp., v. Green Project, L.L.C., No. 141863, 2016 WL 3208943 (Va. April 21, 2016)

Facts: Holtzman Oil Corp. (“Holtzman Oil”) sought specific performance of a contract with New Dominion Investments, LLC (“New Dominion”) to purchase a 2-acre lot within a 30.3-acre tract of land owned by New Dominion. New Dominion then conveyed the 30.3-acre tract to Green Project, LLC, (“Green Project”) subject to the contract with Holtzman Oil.

Under the terms of the contract, Holtzman Oil would choose the 2-acre lot upon the development and submission of a master plan for the 30.3-acre tract to the appropriate governing body. The master plan had to be approved by Holtzman Oil, which approval would not be unreasonably withheld. The contract depended upon Green Project’s determination that the lot could support an aerobic sewer system and that an adequate source of water existed. Additionally, the contract was contingent upon obtaining the permits required to install a well to meet the commercial needs of Holtzman Oil.

Holtzman Oil filed a complaint in circuit court requesting specific performance of the contract, which resulted in a nonsuit (“Holtzman I”). Holtzman Oil filed a second action seeking specific performance of the contract, and various declarations, determinations and orders to effectuate the conveyance of a 2-acre lot designated by Holtzman Oil.

Lower Court Proceeding: The circuit court dismissed Holtzman Oil’s complaint with prejudice, concluding that specific performance was not available due to the “lack of clarity” regarding the lot to be conveyed. The circuit court also awarded attorneys’ fees and costs incurred in the present action and in the discovery conducted in Holtzman I.

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Holdings: The Supreme Court of Virginia affirmed the judgment of the circuit court, holding that the circuit court did not err in dismissing Holtzman Oil’s complaint on the grounds that the contract was too indefinite to be specifically enforced. It also concluded that the circuit court did not abuse its discretion in allowing the Appellees to amend their pleadings to state that the contract was the basis of their request for attorneys’ fees, or in awarding to the Appellees attorneys’ fees and costs incurred in connection with discovery in Holtzman I.

Discussion: The Court began with the “elementary principle” that a court of equity will not specifically enforce a contract unless it is complete and certain, with all essential terms being final and definitely settled, and none being left to be determined by future negotiations.

First, the Court determined that the contract was too indefinite to be specifically enforced by the circuit court because the provision that the master plan had to be approved by Holtzman Oil was evidence that the contract envisioned discussions and further negotiations between Holtzman Oil and Green Project. Furthermore, Holtzman Oil admitted that while the lot had been preliminarily identified, the identification would probably be different after the county looked at its ordinances and exercised its discretion.

Second, the Court determined that the contract could not be specifically enforced because performance of the contract was contingent on Green Project’s determination that there is reasonable access to public water and sewer, and the circuit court could not order Green Project to make this determination.

Third, the Court determined that specific performance would be impractical because it would require successive decrees over a period of years, and the circuit court would have to, but could not, oversee and precisely define every step of performance of the contract, including the development of a master plan, selection of the lot, and the administrative process of approvals for the various permits.

H. Johnson v. Arlington Cnty., 292 Va. 843, 794 S.E.2d 389 (Va. 2016)

Facts: In 2011, Wakefield Manor and Courthouse Manor (together “Manor”) applied to the Arlington County Board to approve redevelopment of their property. In exchange for the preservation of garden apartment buildings on the property, Manor asked the County to certify 104,789 square feet of residential floor area as transferrable development rights (“TDRs”)5. On October 15, 2011, the Arlington County Board approved the site plan for the Manor property that would preserve the garden apartment buildings and approved 104,789 square feet of transferrable development rights. No receiving site had been identified.

Beginning in 2012, the County increased the assessment of the Manor property by 360% based on the TDRs.6

Not until November 2013 did Manor find a purchaser for the TDRs--Carr Properties. On March 14, 2015, Arlington County approved a site plan and transfer of the TDRs from Manor to Carr Properties.

5 Under a TDR program, areas to be protected from further development (“sending areas”) can have

unused density designated as transferrable development rights, and areas better suited for increased development (“receiving areas”) are identified and can have the benefit of receiving and using the additional density granted by the transferred development rights. Thus, a property owner with unused density can sever, sell and transfer the unused density to a designated receiving property which can then build a more dense and profitable project. TDRs cannot be transferred without the County’s approval and the receiving property and the site plan for the receiving property must be approved by the County.

6 Initially the County valued the TDRs at $70,000 per unit, or approximately $70.00 per square foot. Following administrative appeals the assessment was reduced to $60.00 per square foot and then $40.00 per square foot.

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Manor challenged their assessments for the years 2012 and 2013. The initial values assigned to the TDRs by the County of $70,000 per unit, or approximately $70.00 per square foot, was first reduced to $60.00 per square foot and then $40.00 per square foot, following administrative appeals.

Lower Court Proceedings: After exhausting the administrative appeals, Manor filed an action in the Circuit Court of Arlington County challenging the assessments for 2012 and 2013. The County counterclaimed seeking to increase the assessment for the years 2014 and 2015. The Circuit Court ruled in favor of the County and Manor appealed.

Holdings: The Supreme Court reversed and remanded the case for further proceedings consistent with the ruling of the Court.

Discussion: Arlington established a TDR program by amending its zoning ordinance as authorized by Virginia Code § 15.2-7507, which was adopted by the General Assembly in 2005. In 2006, the General Assembly enacted a more comprehensive statutory scheme for TDRs, Virginia Code Sections 15.2-2316.1 through -2316.2. This more comprehensive scheme requires a locality to adopt an ordinance that incudes twelve specifically enumerated provisions.

Section 15.2-2316.2 permits a locality to tax TDRs from a “sending” site before they are attached to a “receiving” site. The Supreme Court found that the statute contemplates that a County must enact an ordinance in accordance with Virginia Code Section 15.2-2316.2 as a necessary precondition for the taxation of TDRs. Arlington County’s TDR ordinances did not comply with Section 15.2-2316.2, therefore, Arlington County lacked authority to tax TDRs under Section 15.2-2316.2.

The earlier Virginia Code Section 15.2-750 authorizes a county to tax TDRs after approval of both a “sending” and a “receiving” site for the TDRs. Until the County approves both the sending site and the receiving site, the TDRs remain an inchoate interest or right. Once both approvals have been obtained the TDRs become a right or interest in real estate that is taxable. The sending site was approved on October 15, 2011, but the receiving site was not approved, and the precondition to taxing the TDRs fulfilled, until March 14, 2015. Thus under Virginia Code Section 15.2-750, the TDRs became taxable as an interest in real estate on March 14, 2015.

I. Saddlebrook Estates Cmty. Ass’n v. City of Suffolk, 292 Va. 35, 786 S.E.2d 160 (2016)

Facts: Kings Fork, LLC (“Kings Fork”) acquired real property in the City of Suffolk and set aside a portion as the Equestrian Center Parcel (“ECP”). Kings Fork leased the ECP to David Christiansen and Indian Point Farms, LLC (“Indian Point”) to establish and operate a riding school and stable (the “Stable”). The lease provided that Christiansen and Indian Point would pay City of Suffolk all real estate taxes owed on the ECP during the term of the lease, and anticipated that Kings Fork would convey its ownership interest in the ECP to Saddlebrook Estates Community Association, Inc. (“Association”)–the owners’ association for the surrounding residential subdivision. The conveyance of the ECP by Kings Fork to the Association also conveyed an easement of enjoyment in all Association property, including the ECP, to the Association’s members.

The City of Suffolk assessed real estate tax on the ECP for 2009, 2010, and 2011, but later exonerated the Association of this tax liability for those years. The City then assessed real estate tax on the ECP for 2012, 2013, 2014 and 2015, and identified the Association as the owner of the ECP, sending the assessments to the Association, care of David Christensen. No one paid the assessments. The City published a notice advertising that the ECP would be sold at auction for non-payment of taxes.

The Association filed a complaint seeking a stay of the sale and a declaratory judgment that (1) it was not liable for the assessments, and (2) that under Virginia Code § 58.1-3284.1(A)8 any tax due was

7 VA. CODE ANN. § 15.2-750 (West 2016). 8 VA. CODE ANN. § 58.1-3284.1(A) (West 2016).

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payable only by the Association’s individual members. The City filed an answer denying that the ECP qualified under the statute, arguing that real property used for commercial enterprises is not within the meaning of “open or common space” as used in the statute.

Lower Court Proceedings: The circuit court held that the Stable was a commercial enterprise and that the General Assembly did not intend “open or common space” as used in Code § 58.1-3284.1(A) to include real estate used for the operation of commercial enterprises open to non-members of a property owners’ association. The circuit court granted the City’s motion to strike and the Association appealed.

Holdings: The Supreme Court of Virginia reversed the circuit court’s judgment, holding that the ECP was within the statutory definition of “open or common space” as defined by Code § 58.1-3284.1(A).

Discussion: The Court reviewed the case de novo to consider whether the definition of “open or common space” in Virginia Code § 58.1-3284.1(A) excludes real property used for a commercial enterprise and whether the ECP is within the statutory definition of “open or common space.” Virginia Code § 58.1-3284.1(A) provides that:

[r]esidential or commercial property, which is part of a planned development which contains open or common space, which includes the right by easement, covenant, deed or other interest in real estate, to the use of the open or common space, shall be assessed at a value which includes the proportional share of the value of such open or common space.

All real property used for open or common space pursuant to this section shall be construed as having no value in itself for assessment purposes. Its only value lies in the value that is attached to the residential or commercial property, which has a right, by easement, covenant, deed or other interest.

The Court determined that the first paragraph of the Code section is consistent with the Court’s ruling in Lake Monticello Owners’ Ass’n v. Ritter9, that the value of a common area owned by a property owners’ association could be assessed only against the association’s members, not the association itself, and that the second paragraph sets the value for assessment purposes as the value that the common area provides to the dominant estate (meaning the value by which access to and use of the common area increases the value of the lots). The Court held that the first paragraph makes only the owners of the dominant estate liable for the tax assessed in proportion to each owner’s respective lot as a percentage of the whole subdivision. The Court agreed with the Association that ECP is within its common area and within the definition of “open or common space,” given that the statutory definition expressly includes both “recreational facilities” and “any . . . property used and owned by an automatic membership corporation or association.” As further support, the Court noted that like the golf course in Lake Monticello Owners’ Ass’n, the Stable is open to non-members, the profits are used to defray the Association’s operating costs, and that a member of the Association testified that members of the Association benefited from the Stable. The Court did not deem it relevant that the Association operated the Stable through a lease agreement and collected the supplemental revenue derived from the Stable’s profit in the form of lease payments from the lessees. The Court reversed the lower court’s judgment and vacated the assessments, having determined that Stable is a commercial enterprise and therefore the ECP fell within the meaning of “open and common space” as defined by the Code.

J. Tvardek v. Powhatan Vill. Homeowners Ass’n, 291 Va. 269, 784 S.E.2d 280 (2016)

Facts: In 2013, Steven and Martha Tvardek, homeowners, filed a declaratory action against Powhatan Village Homeowners Association, Inc. (“Association”) in the Circuit Court of the City of Williamsburg and James City County challenging the validity of a 2008 amendment to the Association’s Declaration of

9 Lake Monticello Owners’ Ass’n v. Ritter, 229 Va. 205, 327 S.E.2d 117 (1985).

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Protective Covenants and Restrictions (the “2008 Amendment”), as unlawfully depriving them of a preexisting right to rent their home, which they had purchased in 2006.

Lower Court Proceedings: The trial court found that the action was untimely under the one-year statute of limitations prescribed by Virginia Code § 55-515.1(E)10 and granted the Association’s special plea in bar dismissing the case and awarding attorney’s fees to the Association.

Holdings: The Supreme Court reversed and remanded finding that the one-year statute of limitations in Virginia Code § 55-515.1(E) runs only from the date of an “effective” amendment, which includes filing of a proper certification required by Virginia Code § 55-515.1(F)11, which was not satisfied as to the 2008 Amendment.

Discussion: Virginia Code § 55-515.1(E) provides that an action challenging an amendment to a homeowners’ association’s declaration must be commenced within one year of the amendment becoming effective. Virginia Code § 55-515.1(F) provides that an amendment will become effective when a copy of the amendment is recorded, together with a certification, signed by the principal officer of the association certifying that “the requisite majority of the lot owners signed the amendment or ratifications thereof” [emphasis added]. The certification filed with the 2008 Amendment stated:

this Amendment has been approved by a vote of two-thirds of the Class A votes in the Association, as evidence by the results of the meeting at which the vote was taken.

The Court reviewed the common law strict-construction doctrine as it applied to restrictions running with the land and statuary construction of the common law, including the Virginia Property Owners’ Association Act, which permits those not in privity with the original grant to be bound, provided the statutorily prescribed procedures are followed. The Court also reviewed the rules of statutory construction concluding “[w]e presume that the legislature says what it means and means what is says”:

Code § 55-515.1(F) is conspicuously precise. It requires the certification to verify that the requisite majority ‘signed the amendment or ratification thereof.’ There is a difference between adopting an amendment and signing it. . . . Code § 55-515.1(F), however demands extra precaution of requiring that the members voting in favor of an amendment verify that vote with their signatures—no doubt to discourage quarrelsome disputes between neighbors about who voted for what and when. [emphasis original]

The requirement of proper certification was not satisfied and the one year statute of limitations in Virginia Code § 55-515.1(E) did not apply.

K. Va. Elec. and Power Co. v. Hylton, 292 Va. 92, 787 S.E.2d 106 (2016)

Facts: Virginia Electric and Power Company (“Dominion Power”) sought a 7.88 easement for a transmission line on property owned by Hylton, which comprised 354 acres in Wise County consisting of 22 tracts of land, 2 of which were non-contiguous. Hylton owned the surface and mineral rights on some of the tracts but only the mineral rights of others.

At the time, a deep mine was on the property and was leased to Rapoca Energy (“Rapoca”), but mining had ceased, the mine was flooded and Rapoca had no plans to reopen the mine. There were no surface mining permits for the property.

On November 6, 2008 Dominion delivered to Hylton its written offer to purchase the easement for $19,100. The offer included an appraisal prepared by Michael Ewell. The appraisal indicated that the easement crossed only three parcels that made up only 65 acres and that the highest and best use was “rural

10 VA. CODE ANN. § 55-515(E) (West 2016). 11 VA. CODE ANN. § 55-515(F) (West 2016).

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residential and agricultural.” Ewell acknowledged that the easement might damage Hylton’s ability to sell or lease mineral rights, but did not consider mineral rights in determining fair market value of the property.

On February 19, 2009, the parties signed an agreement granting Dominion the right to construct the transmission line.

Subsequently Hylton hired a mining engineer, Phillip Lucas, to investigate the coal on the property. The engineer concluded that development of the coal deposits was consistent with one of the highest and best uses of the property and that the coal reserves under the take area were lost and unrecoverable as a result of the take.

Lower Court Proceedings: On March 4, 2010, Dominion filed its petition in the Circuit Court of Wise County seeking only surface rights--no mineral rights. In his Answer and Grounds of Defense Hylton admitted that Dominion “may feel that a bonafide offer to purchase has been made, however, [Hylton] denies the sufficiency of the offer. . . .”

On September 27, 2011 Dominion filed a motion in limine seeking to prohibit Hylton from presenting evidence at trial of “the separate value of coal” on the property or “damage of any kind to any tracts not taken in these proceedings.” The Circuit Court denied the motion.

On October 23, 2012, Hylton filed a Motion to Dismiss, averring that Dominion’s offer to purchase was not a bona fide offer as required by Virginia Code § 25.1-20412. Dominion responded that Hylton had waived the issue as to whether the offer was bona fide. The Circuit Court found that Hylton had not waived the issue of jurisdiction and that because of deficiencies in Dominion’s appraisal, the offer could not be considered a bona fide offer. The deficiencies cited by the Circuit Court included that the offer: (1) had no comparative judgment for highest and best use; (2) did not consider coal or mineral estate of the property; (3) did not consider that the property was income producing; (4) did not consider damages to the residue from the towers and their effect on surface and subsurface usage; and (5) did not appraise all of Hylton’s property. The Circuit Court granted the Motion to Dismiss, and, due to Dominion’s “bad faith,” awarded Hylton $312,575.10 in attorney’s fees and $141,866.07 for costs and expenses. Dominion appealed.

Holdings: The Supreme Court reversed dismissal of the action by the Circuit Court and reversed in part the denial of the Motion in Limine.

Discussion:

Motion to Dismiss – The Supreme Court analyzed the bona fide effort requirement of Virginia Code § 25.1-204 and concluded that it was an “other jurisdictional element” (that is, not subject matter jurisdiction, territorial jurisdiction, or notice jurisdiction), and thus was waived unless properly raised in the pleadings. Virginia Code § 25.1-21313 requires a landowner objecting to a trial court’s jurisdiction over a condemnation proceeding to raise the objection within 21 days of being served with the Petition for Condemnation as part of the landowners Answer and Grounds of Defense. In Hylton’s Answer he denied that the offer made by Dominion was sufficient. The Court concluded that more is required to state an objection to jurisdiction based on a failure to make a bona fide offer. Therefore, the objection to jurisdiction was waived.

Motion in Limine – Dominion appealed the Circuit Court’s decision to allow the landowner to present evidence on three issues: (1) the separate value of coal reserves on the property; (2) the value of a possible surface mine; and (3) the devaluation of the neighboring tracts not subject to the take.

(1) Where mineral deposits exist in condemned property, the measure of compensation is the fair market value of the property, and the presence of mineral deposits is an element of

12 VA. CODE ANN. § 25.1-204 (West 2016). 13 VA. CODE ANN. § 25.1-213 (West 2016).

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value to be considered. But the separate value of the mineral deposits themselves and the future rents and royalties are inadmissible for proving either value of the property taken or damage to the residue. The Circuit Court committed error in denying the Motion in Limine on this point.

(2) In ascertaining damages resulting from a taking “both present and future circumstances which actually affect the value of the property at the time of taking may be considered” [emphasis added by the Court]. It is improper to consider circumstances that are based on future expenditures or improvements to the property, as such circumstances would involve too much speculation and conjecture. At the time of the take a surface mine did not exist nor was one contemplated, therefore a hypothetical surface mine would necessarily be speculative. Evidence of value related to surface mining would be inadmissible and the Circuit Court erred in denying the Motion in Limine on this point.

(3) An owner is entitled to recover damage to the remainder of the tract, but not for damage to separate and independent tracts except where three factors exist, unity of use, physical unity and unity of ownership (Unity of Lands Doctrine). It is, however, for the jury to determine the ultimate question of unity and to determine whether that unity (if found), and its loss by reason of the taking, affects the value of the remainder. The Circuit Court correctly denied the Motion in Limine with regard to potential evidence that showed devaluation of the neighboring tracts owned by Hylton.

L. Washington v. Prasad, 292 Va. 658, 791 S.E.2d 566 (2016)

Facts: Prasad purchased Parcel 8-C (17211 Shads road) at a tax sale. Before the sale, Prasad viewed the County assessor’s records for Parcel 8-C. The County tax card incorrectly included a photograph of the house on Parcel 9-A (17201 Shads road), which was owned by Washington. Prasad also obtained a copy of the tax map which showed both parcels. Prasad went to view the property before the sale, but believing Parcel 9-A to be Parcel 8-C he drove to the house shown in the photograph on the County tax card. Making matters worse, the Washington house displayed on the house and the mailbox at the street 17221 as the house number (the number had been changed but Washington never changed the numbers on the house). Prasad submitted the high bid of $11,000 for Parcel 8-C.

After the sale, Prasad began renovating the Washingtons’ house, spending $23,500 on the renovation. Two months into the renovations, Prasad received a letter from the Washingtons’ attorney directing him to vacate the property. The work on the Washingtons’ house was done without the Washingtons’ knowledge or approval.

Prasad filed a two-count action against the Washingtons in the Circuit Court of Prince George County, seeking a constructive trust on Parcel 9-C and the improvements and sale of the property and an award of damages, claiming that the Washingtons had been unjustly enriched as a result of the fraud perpetrated by them by misrepresenting the address of their house.

Lower Court Proceedings: The trial court imposed a constructive trust on Parcel 9-C with a judgment in the amount expended on the house totaling $23,508.00. The trial court concluded that in equity the failure of Prasad to do appropriate due diligence was not a bar to his recovery. The Washingtons appealed.

Holdings: The Supreme Court reversed.

Discussion: The Supreme Court found that based on the undisputed facts, Prasad had at least constructive notice of the actual location of both lots. The Supreme Court continued the long line of cases finding that “a purchaser must look to every part of the title which is essential to its validity. The law requires reasonable diligence in a purchaser. . .” Absent such due degree of caution, the purchaser is not entitled to protection. The Supreme Court concluded that it was Prasad’s failure to exercise due diligence that resulted in his misidentification of Parcel 9-A as Parcel 8-C. Prasad proceeded “at his peril.” With knowledge imputed to

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him, Prasad was not entitled to recover compensation for the improvements made to the Washingtons’ property.

M. Wetlands America Trust, Inc. v. White Cloud Nine Ventures, L.P., 291 Va. 153 782 S.E.2d 131 (2016)

Facts: Wetlands America Trust, Inc. ("WAT") held a conservation easement on property owned by White Cloud Nine Ventures, LP ("White Cloud"). White Cloud commenced construction activities on the property, including constructing a multi-purpose building used as a creamery, bakery, wine storage, and tasting room, as well as an adjoining parking lot, road, and bridge.

WAT filed an action in Circuit Court seeking a declaratory judgment that White Cloud’s construction activities and intended commercial use of a new facility on the property violated the easement’s restrictive covenants. White Cloud denied violating the easement and asserted as affirmative defenses that the easement was unenforceable because it was impermissibly vague and ambiguous and that WAT’s claims were barred by estoppel and laches.

Lower Court Proceedings: The trial court generally ruled in White Cloud’s favor. WAT appealed, asserting the trial court erred because it (1) applied the common law strict construction principle for restrictive covenants, (2) ruled that the term "farm building" in the easement was ambiguous and White Cloud's building was a permitted farm building under the easement, (3) ruled that the prohibition of the easement against constructing a building on "highly erodible area" was ambiguous and that the erodibility was to be tested after the construction site had been graded, (4) ruled that the alteration of topography for the parking lot was required and did not require WAT's permission, (5) ruled that the stated purpose of the easement in regard to the predominant condition of the property and prevention of significant impairment of the easement's conservation values were ambiguous and misapplied the stated purpose, and (6) refused to consider WAT's claim that White Cloud's construction of the new bridge violated the easement because WAT did not allege the claim in its complaint.

Holding: The Supreme Court affirmed the lower court’s decision. Restrictive covenants in the easement are ambiguous and must be strictly construed against restriction and in favor of White Cloud.

Discussion: The Supreme Court of Virginia stated that in construing a deed, where language of the deed clearly and unambiguously expresses the intention of the parties, no rules of construction should be used to defeat that intention. Words are given their usual, ordinary meaning, with the presumption that parties did not use words needlessly. The whole of the deed and all of its parts should be considered together to determine the controlling intent. A deed is unambiguous if its provisions are capable of only one reasonable interpretation. It will be ambiguous if its language can be understood in more than one way or refers to two or more things at the same time. Ambiguity is strictly construed against the party seeking to enforce the instrument. Even if the court resolves the meaning of disputed restrictive covenants, the restrictions will be enforced when applicable, and a plaintiff seeking enforcement has the burden to prove they have been violated by acts of the defendant. The common law principle of strictly construing against restriction was not abrogated by the Virginia Conservation Easement Act ("VCEA"), which favored land conservation.

The easement restricted construction of buildings except for farm buildings or structures, referring to them as "agricultural buildings." Reviewing various definitions of farm buildings or structures and agricultural buildings, the Court determined that the easement permits buildings that may be used for agricultural activities that are commercial and/or industrial in nature. Thus, White Cloud's building falls under this interpretation as the building stored and sold wine, cheese, and bakery products from grapes, milk, and wheat, respectively, cultivated on the property.

The easement also restricted construction of a building on highly erodible areas, but did allow White Cloud to grade the construction for the new building. The Court held that if the site for constructing a permitted building was not highly erodible after the grading for the site has been done, then there was no violation of the easement; therefore, post-grading was the time to test the site's erodibility. Because a construction site for a building may be graded, the adjoining parking lot may also be graded. A provision

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requiring WAT's written approval for altering the topography was drafted for water-related resources, and thus did not apply to the parking lot.

Additionally, the purpose of the easement was to prevent any use of the property that would significantly impair or interfere with conservation of the area while permitting some agricultural uses. WAT contended that the easement required the property to retain the land as described by a report at the time of the easement grant. However, the Court found that the easement expressly permitted agricultural pursuits. White Cloud was not required to retain the property in the condition established by the report to the extent it engaged in permitted uses.

Lastly, though WAT presented evidence at trial that White Cloud’s construction of the new bridge on the property violated the easement, WAT failed to allege in its complaint that the bridge violated the easement, and the trial court refused to consider the claim. The Supreme Court held that a court is not permitted to enter a decree or judgment order based on facts not alleged or on a right not pleaded and claimed.

II. VIRGINIA CIRCUIT COURT CASES

A. Atl. Coast Pipeline, LLC v. Avery, 2016 Va. Cir LEXIS 73 (2016)14

Facts: Atlantic Coast Pipeline, LLC, a Delaware limited liability company (“ACP”), is in the business of underground storage and transportation of natural gas. ACP is subject to the jurisdiction of the Federal Energy Regulatory Commission (“FERC”). ACP sought regulatory approval from FERC for a natural gas transmission line extending from West Virginia through Virginia and into North Carolina. In order to obtain FERC approval for the proposed pipeline, ACP was required to conduct surveys, testing, appraisals, etc. for submission to FERC. The respondents in this matter are landowners who own property on the route of the proposed pipeline. ACP, pursuant to Virginia Code § 56-49.0115, sent notice to the landowners requesting permission to inspect their land along the proposed route. The respondent landowners either denied permission to ACP for the requested access or failed to respond. ACP then sent each resident landowner a notice of intent to enter. ACP filed a Petition for Declaratory Judgment asking the Court to resolve this controversy and requested an order granting ACP the authority to enter the property without interference by the respondents. The respondents filed a Plea in Bar and numerous Demurrers.

Holding: See the Discussion below for each individual ruling.

Discussion: In the Plea in Bar, respondents asserted that ACP could not be granted access to enter the landowner’s property pursuant to Virginia Code § 56-49.01 because it is not a Virginia Public Service Company, and only Virginia Public Service Companies can utilize the provisions of this Code section. Respondents relied on the location of the Code Section in Title 56 (labeled “Public Service Company”) and location under Chapter 2 (labeled “Creation and Powers of Public Service Corporations”). The Court noted that under long settled principles of Virginia law, the headings of statutes are not part of the statute and not dispositive of the application of the statute; a court must look at the express language of the statute. The Court found that by its express terms, Code § 56-49.01 does not require that an entity be a Virginia recognized public service entity in order to utilize the statute’s right of entry provisions. Notwithstanding,

14 Atl. Coast Pipeline, L.L.C. v. Avery, CL15000280-00, CL15000275-00, CL15000272-00,

CL15000415-00, CL15000269-00, CL15000417-00, CL15000299-00, CL15000313-00, CL15000449-00, CL15000420-00, CL15000422-00, CL15000414-00, CL15000406-00, CL15000398-00, CL15000404-00, CL15000281-00, CL15000411-00, CL15000274-00, CL15000397-00, CL15000403-00, CL15000333-00, CL15000401-00, CL15000277-00, CL15000412-00, CL15000314-00, CL15000330-00, CL15000263-00, CL15000268-00, CL15000408-00, CL15000266-00, CL15000423-00, CL15000270-00, CL15000271-00, CL15000273-00, CL15000410-00, CL15000413-00, CL15000419-00, 2016 Va. Cir. LEXIS 73 (2016).

15 VA. CODE ANN. § 56-49.01 (West 2016).

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the Court found that ACP would qualify as a “public service company” under the statutory definitions. Respondents’ Plea in Bar was denied.

Demurrers were filed by respondents alleging the following:

(a) service of process was improper based upon the time of night that the process was served and based upon service being made at a different address than the address listed in the Complaint. The Court noted that Virginia law does not require that a respondent be served at a particular time, or prior to a particular time, or that service be made at a certain address, including the address on the Complaint. This Demurrer was denied.

(b) for a respondent landlord, the lessee and not the property owner is the proper party to this proceeding. The Court overruled this Demurrer, stating that the property owner is the only appropriate party under Virginia Code § 56-49.01, and the Complaint listed the property owner.

(c) numerous issues with regard to archaeological and environmental concerns: The Court found that while these issues are important, they are the province of FERC in determining the appropriate route for the proposed pipeline and areas to avoid. These concerns did not make this action demurrable.

(d) Virginia Code § 56-49.01 is unconstitutional because it authorizes a “taking” of private property in violation of the Virginia Constitution. The Court found that Virginia has long held that there is no absolute right to exclude a temporary access to survey, noting that caselaw has held that not every physical invasion is a taking and there is a constitutional distinction between a permanent occupation and a temporary physical invasion. Since ACP’s right of entry is not unlimited as to date, scope or duration under Virginia Code § 56-49.01, this Demurrer was denied.

(e) since the pipeline project had not yet been authorized by FERC, ACP is not an “authorized public services provider” of natural gas for which eminent domain can be exercised, and therefore the surveying is for private, not public, use and as such is unconstitutional. The Court rejected this argument, finding that the pipeline is for public use. The Court stated that respondent’s argument that the public transmission of natural gas is not for public use ignores long standing state (Virginia Code § 56-605) and federal (Natural Gas Act) statutes. Furthermore, the surveys authorized by Virginia Code § 56-49.01 satisfy the public use requirement as they will prevent the unnecessary expense and pointless condemnation of land that is not suitable for the pipeline. FERC would be required to evaluate a project without necessary data if it was prohibited from surveying to determine the “best” route or whether a particular parcel is an appropriate location for the pipeline. The Court found that the gathering of data necessary for FERC’s approval of an interstate pipeline that will serve the citizens of Virginia is for a public use. Therefore, the Court found that not only is access to survey in this case not a “taking”, but even if it were, it is for public use.

(f) Virginia Code § 56-49.01 is unconstitutional because it authorizes taking or damaging private property without just compensation. As the Court previously stated, surveying in this case does not amount to a “taking”, however, by statute if the survey process results in damages, it is not without compensation. Virginia Code § 56-49.01 requires the natural gas company to reimburse the landowner for any actual damages resulting from its entry onto the property. Therefore, the statute does not authorize “taking” or damaging without just compensation. Demurrer denied.

(g) access granted to ACP to survey constitutes an illegal search and seizure in violation of the 4th Amendment of the United States Constitution16 and Article I, Section 10 of the Virginia Constitution17. The Court did not agree with this argument. The 4th Amendment prohibits only unreasonable seizures, and reasonableness requires a balancing of governmental and private interests. The Court found (i) that the Commonwealth’s interest in facilitating the supply of natural gas to its citizens

16 U.S. CONST. amend. IV. 17 VA. CONST. art. I, § 10.\7

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outweighs the respondents’ interest in excluding others from their properties, and (ii) on its face, Virginia Code § 56-49.01 goes no further than is necessary to advance that interest, permitting only a minimally intrusive entry.

(h) ACP failed to comply with the statutory requirements of Virginia Code § 56-49.01 (B) as the Request for Permission to Inspect, which stated an “on or about” date of entry, did not specifically set forth the date such inspection is proposed to occur as required by the statute. The Court again disagreed with the respondents, noting that the Request for Permission to Enter under Virginia Code § 56-49.01(B) is simply a request for the consent of the homeowner to allow the survey crews to enter the property. The specificity of the “proposed date” of entry is not critical because unless the landowner agrees in writing, then no entry can occur based upon the initial request. Therefore, the Court found that the date in this notice, although vague, met the statutory requirements of Virginia Code § 56-49.01.

(i) the Notices of Intent to Enter given in these cases under Virginia Code § 56-49.01(C) were legally insufficient as the statute requires that the Notice “set forth the date of the intended entry.” The Notices sent by ACP indicated that ACP intended to commence surveys “on or after” a specified date. This time, the Court agreed with the respondents, noting that the statute requires that before entry is authorized by statute (without written consent), the notice must “set forth the date of the intended entry; and be made not less fifteen (15) days prior…”. The Court stressed that the clear purpose of the notice requirement was to provide landowners advance notice of the entry to enable the landowners to plan accordingly in the event that they wish to be present. A notice that the actions will take place “on or after” does not enable a landowner to protect its interest and thus is no notice at all. The Court granted this Demurrer, and granted ACP leave to file an Amended Petition, along with revised Notices of Intended Dates of Entry.

B. Atl. Town Ctr. Dev. Corp v. Accomack Country Bd. of Supervisors, No. CL15-109, 2016 Va. Cir. LEXIS 112 (2016)

Facts: Plaintiffs purchased a parcel of land located in Accomack County that was approximately 108 acres, zoned agricultural. The parcel is located on State Route 175, southwest of the NASA facility known as NASA Wallops Flight Facility. The parcel was subsequently subdivided, with 30 acres rezoned to commercial use and the remaining 78 acres, which is the property subject to the litigation, maintaining its agricultural zoning classification. The County’s Comprehensive Plan included a Village Development area ordinance overlaying Plaintiffs’ parcel. The Plaintiffs filed for a conditional use permit (“CUP”) in February, 2014, seeking authorization to construct a central water and sewer facility on the property. Initially the Plaintiffs requested a capacity of 10,000 gallons per day (“g/p/d”) to serve the whole of the property, including the needs of the commercial property and a neighboring parcel. The permit was approved by the Accomack County Board of Supervisors (“Board”) in March, 2014. Four months later, Plaintiffs filed a conditional rezoning application requesting a rezoning of the 78-acre tract from agricultural to residential. Plaintiffs proposed to develop 432 housing units, construct an alternative onsite sewerage facility (“AOSS”) for wastewater treatment, and to leave the rear 30 acres as open space. The immediate concerns of the County involved the number of proposed units, which was in excess of other developments in the County, and discussions quickly focused upon methods of phasing the Plaintiffs’ development. Complicating the issue further, the military and community completed a draft Joint Land Use Study (“JLUS”) for the Accident Potential Zones (“APZ’s”) surrounding the NASA Wallops Flight Facility in June, 2014. A portion of the 78-acre tract is impacted by APZ 2. In July, 2014, the Plaintiffs submitted an amended CUP application seeking to increase their wastewater treatment capacity from 10,000 g/p/d to 100,000 g/p/d to serve the property. The amended CUP also sought to relocate the AOSS to the rear portion of the property and procure a one-year extension on the CUP. In September, 2014, Plaintiffs submitted a revised amended CUP application lowering their wastewater capacity request from 100,000 g/p/d to 30,000 g/p/d. On March 18, 2015, the Board voted to deny both the conditional rezoning application and the amended CUP application. On April 15, 2015, the Board revised its March decision regarding the amended CUP application and voted to approve the requested relocation of the facility and a one year extension of the original CUP, but did not alter its denial of Plaintiff’s request for increased wastewater capacity. On April 16, 2015, Plaintiffs filed a complaint in the Accomack County Circuit Court alleging the unreasonable

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denial of the conditional rezoning application (on several grounds) and that the Board lacked the authority to require a CUP for an AOSS to serve the property.

Holding: The denial of the conditional rezoning application was not unreasonable, and in this case, the Board did lack the authority to require a CUP for the AOSS.

Discussion: Plaintiffs alleged that the Board’s denial of the rezoning application was (a) arbitrary, capricious and unreasonable, and (b) based on the lack of an unconstitutional proffer. A conditional zoning application is submitted when and where competing and incompatible uses conflict. While the governing body may not require specific proffers, the application as a whole must be evaluated, considering whether the conditions stipulated by the applicant are sufficient to protect the community, even where the conditions are not generally applicable to land similarly zoned. Further, the governing body has the legislative authority to choose between reasonable uses of the land. If a reasonable use of the land remains, then the denial is not arbitrary or capricious as the denial is fairly debatable; i.e. a choice between two reasonable uses. In the present case, competing and incompatible uses conflict. The County indicated its desire for more residential development, but was faced with (a) normal growing pains regarding adequate public facilities to support development, (b) the JLUS study results affecting the property, and (c) fine tuning zoning and thus density in a manner that promotes the orderly development of land. The current use of the property is farming, which continues as a reasonable use of the land at the time of submission and consideration of the rezoning application. In addition, the Court noted that the County’s agricultural zoning classification includes provisions for expanded uses other than agricultural under a special exception process and pursuant to conditional uses that include residential development subject to certain area and density regulations. Therefore, it was incumbent upon Plaintiffs to establish that the uses permitted under the agricultural zoning classification were not reasonable uses of the property. The testimony showed that the planning staff could support 100 residential units on the property, but was unable to reconcile issues associated with the 432-unit density Plaintiffs required to support the economic feasibility of the project. Both residential and agricultural zoning are reasonable uses of the property, therefore, the Board’s decision in denying the rezoning application leaves a reasonable use of the land. The denial was not arbitrary and capricious; it was fairly debatable and within the sound discretion of the Board. Hence, the Court dismissed the allegation.

Plaintiffs further alleged that the planning staff’s discussion of a phasing proffer (the reverter concept) with the Plaintiffs amounted to an unconstitutional condition, and Plaintiffs failure to proffer the unconstitutional condition was a factor in denying the conditional zoning application. The Court found that the phasing discussions were nothing more than an effort to find a method to resolve the differences of the parties regarding density and did not evolve into a demand, either at the staff level or by the Board, for a proffer of an automatic reverter. The Court found this allegation by the Plaintiffs to be speculative and dismissed the allegation.

Plaintiffs further argued that the Board, in denying the conditional rezoning application, violated the Plaintiffs’ vested rights in the land. In support of this allegation, Plaintiffs point to the fact that the property is in the Village Development Area within the zoning district. Plaintiffs believed that the inclusion of the Village Development area in the County’s Comprehensive Plan is equivalent to an affirmative governmental decision bestowing vested rights. The Court rejected Plaintiff’s argument, stating that the Comprehensive Plan is intended to predict future land use, but is not a decision bestowing specific development rights to the property. The Virginia Supreme Court has said in numerous cases that vested rights are created only through the seven deemed significant affirmative governmental acts listed in Virginia Code § 15.2-215718, and if not specifically listed, a court relies on its “case law to determine whether a particular act constitutes a significant affirmative governmental act”. The Court, in dismissing this allegation, stated (a) the facts of this case did not fall within the seven statutorily “deemed’ affirmative governmental acts, (b) by case law, the Supreme Court has said that a future expectation that a landowner will be able to develop property in accord with current zoning is insufficient, (c) mere reliance on a

18 VA CODE. ANN. 15.2-2157 (West 2016).

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particular zoning classification creates no vested right, and (d) when a landowner has only a future expectation in the use of property no vested right is created.

Finally, Plaintiffs sought a declaratory judgment that “as a matter of law, Plaintiffs may construct and operate an AOSS for treatment of wastewater in accordance with the regulatory authority of the Department of Environmental Quality, the State Corporation Commission, and the Virginia Department of Health [“VDH”]” and that “the County does not have the authority to require a conditional use permit for the AOSS, or, in the alternative, that the conditions contained in the CUP exceed the County’s authority”. First, the Court addressed the issue of standing. The Court found that notwithstanding the fact that the Plaintiffs system had not yet been approved by VDH as required by Virginia Code § 15.2-2157, Plaintiffs had standing to bring a declaratory judgment action because the Plaintiffs’ claim injury by virtue of having to go through the process to obtain a CUP that they argue cannot lawfully be required. The Accomack County ordinance requires a CUP for central water and sewer facilities in the agricultural district. The Court found that the language of Virginia Code § 15.2-2157(C) prohibits a locality from requiring a conditional use permit for the operation of a VDH-approved alternative onsite sewer system where there is no sewer or sewerage facility available. The requirement of a CUP for the AOSS could result in a denial of the permit by the County, which would conflict with the statute. Because a local ordinance cannot conflict with state law, and, in this situation the two cannot be harmonized, the state regulations preempt the Accomack County ordinance. The Court did note that the AOSS is subject to oversight by the County through other processes, such as site plan review and regulation as permitted by statute, provided that the County’s requirements do not exceed those imposed by VDH and do not function to prohibit the system in violation of Virginia Code § 15.2-2157(C). Instructive to the Court in deciding this issue was an advisory opinion by the Virginia Attorney General.19

C. Burgest v. HSBC, USA, N.A., No. CL14008747-00, 2016 Va. Cir. LEXIS 16 (2016)

Facts: Plaintiff obtained a mortgage loan from Countrywide Home Loans, Inc. in 2005, which loan was secured by a deed of trust against her Norfolk residence. The beneficiary of the deed of trust was Mortgage Electronic Registrations Systems, Inc. (“MERS”), as nominee for the lender. It was undisputed that as of November 27, 2007, the mortgage loan was in arrears. The following are key dates:

November 30, 2007: MERS assigned its beneficial interest in the deed of trust to HSBC, as trustee for a securitized trust operating under NY law;

August 1, 2011: HSBC transferred to Bank of America its claims to the note and deed of trust;

July 23, 2013: Bank of America assigned its interest in the note and deed of trust to Nationstar Mortgage, LLC;

December 16, 2013: HSBC appointed Defendant Commonwealth Trustee, LLC (“Commonwealth”) as a substitute trustee in a document signed by “Nationstar Mortgage LLC as Attorney in Fact for HSBC Bank USA”;

February 11, 2014: Commonwealth conducted a foreclosure sale of Plaintiff’s home, which HSBC purchased via a credit bid against Plaintiff’s indebtedness under the Note.

Plaintiff attacked the validity of the foreclosure sale on the basis that HSBC was not the holder of the Note when it appointed Commonwealth as substitute trustee. If the appointment of Commonwealth was unauthorized, then Commonwealth had no authority under the deed of trust to initiate foreclosure proceedings. The Court rejected Plaintiff’s primary legal theory supporting its conclusion that HSBC was not the holder of the Note at the time of Commonwealth’s appointment. The Court granted leave to amend as to the claims for fraud and breach of contract so that Plaintiff could allege any additional factual basis to challenge HSBC’s claimed status as holder of the Note. Plaintiff filed an Amended Complaint reasserting

19 Official Opinion to Sen. Martin, No. 10-061, 2010 Va. Att’y Gen. LEXIS 79 (2010).

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her original claims for fraud and breach of contract. Defendant demurred on several grounds, including (i) Plaintiff lacked standing to challenge the appointment of substitute trustee because she was neither a party to, nor an intended beneficiary of, the Appointment of Substitute Trustee, and (ii) Plaintiff failed to allege facts to support her legal conclusion that HSBC was not the holder of the Note when it appointed Commonwealth as substitute trustee.

Holding: The Court found that Plaintiff had standing to challenge the appointment of substitute trustee, but that the Amended Complaint failed to adequately allege the Defendant breached the deed of trust by directing Commonwealth to conduct the foreclosure sale or engaged in fraud by misrepresenting its authority to foreclose on Plaintiff’s home.

Discussion: On the issue of standing, the Court stated that the Supreme Court of Virginia has explained standing as follows:

The concept of standing concerns itself with the characteristics of the person or entity who files suit. The point of standing is to ensure that the person who asserts a position has a substantial legal right to do so and that his rights will be affected by the disposition of the case.

The Court pointed out that at least one Virginia court [Albemarle County Circuit Court in 2011] found that a borrower in default does have standing to challenge the appointment of a substitute trustee under facts similar to the case at bar. The Court also cited a 2016 California Supreme Court case that stated “[A] borrower who has suffered a nonjudicial foreclosure does not lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely because he or she was in default on the loan and was not a party to the challenged assignment.” The Court was unpersuaded by HSBC’s argument that the Virginia federal courts generally hold that borrowers in default on their loan obligations lack standing to challenge the appointment of a substitute trustee under a deed of trust, stating that standing in federal court is a separate inquiry from standing in state court.

On the issue of HSBC’s status as Noteholder, Plaintiff re-alleged that Nationstar, and not HSBC, was the noteholder when Commonwealth was appointed substitute trustee. To support her allegation, Plaintiff pointed to the written instrument documenting the July 2013 transfer of the Note from Bank of America to Nationstar and noted the lack of any subsequent instrument transferring the Note from Nationstar to HSBC. Plaintiff urged the Court to conclude from the absence of such document that Nationstar remained the noteholder on December 13, 2013. The Court indicated that it could not reach the conclusion suggested by the Plaintiff on the basis of the alleged gap in the documentary record chronicling transfers of the Note. The lack of a recorded document, without more, is insufficient to show that HSBC did not acquire the Note prior to Commonwealth’s appointment. Pursuant to Virginia Code § 55-66.0120, recordation of an assignment is optional under Virginia law; the nonexistence of a recorded instrument has no bearing on whether an assignment occurred. Furthermore, the Court noted that the language of the Appointment of Substitute Trustee contradicted Plaintiff’s reasoning. The Appointment recited that HSBC was the holder of the Note. Plaintiff conceded at oral argument that HSBC was the holder of the Note on the date of the foreclosure sale because it purchased the property via credit bid. Therefore, all parties agreed that at some point between the date of the assignment to Nationstar and the date of the foreclosure sale, HSBC acquired the Note in an unrecorded transaction. The Court, in reaching its conclusion, relied on the language of the Appointment and ruled that Plaintiff did not allege a sufficient factual basis by which the trier of fact could come to a different conclusion.

D. Columbia Gas of Va., Inc. v. Drewry, No. CL15009508-00, 2016 Va. Cir. LEXIS 70 (2016)

Facts: Columbia Gas, as successor in interest to Atlantic Seaboard Corporation (“Atlantic Seaboard”), owns and operates an intrastate natural gas distribution pipeline located in Amherst County. The pipeline was installed in 1956 across the subject property pursuant to an easement dated March 7, 1956 between

20 VA. CODE ANN. § 55-66.01 (West 2016).

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L.H. Shrader and Beth W. Shrader (hereinafter “Shraders”), as Grantors, and Atlantic Seaboard, as Grantee, and recorded among the land records in Amherst County. The easement granted Atlantic Seaboard the right to install and maintain a gas pipeline through the subject property. Thereafter, the Schrader’s developed a subdivision on the property on which the easement was previously granted. Drewry obtained title to the subject property. On or about May 15, 2015, Columbia Gas became aware that Drewry had constructed a wooden deck directly in the area of the pipeline with numerous support posts either directly above or in close proximity to the pipeline. Drewry also built an above-ground swimming pool in close proximity to the pipeline, and constructed a board fence over the pipeline. Drewry did not contact Miss Utility of Virginia before installing the swimming pool, deck or fence as required by Virginia Code § 56-265.1721, nor did he contact Columbia Gas before beginning construction. Upon discovering the construction, Columbia Gas conducted tests which indicated possible damage to the pipeline’s protective coating. Columbia Gas filed suit requesting preliminary and permanent injunctions and monetary damages. After a hearing, the Court ordered Drewry to drain the pool, remove the deck boards and support posts that were directly over the pipeline, and remove a portion of the fence and posts believed to be directly over the pipeline. Drewry complied. Columbia Gas conducted additional testing, which included digging up the pipeline. Upon inspection, Columbia Gas determined that the pipeline’s protective coating had been damaged, but the construction of the fence, deck and pool had not caused the damage. Columbia Gas sought a permanent injunction ordering Drewry to remove the deck, swimming pool and fence from the easement, and reimbursement for the costs incurred in monitoring, excavating and reburying the pipeline.

Holding: The Court found that construction of the deck, fence and swimming pool violated the terms of the easement, and ordered Drewry to remove and relocate the deck, fence and swimming pool. Since Drewry’s actions did not cause the damage to the pipeline, Columbia Gas’ claim for monetary damages was denied.

Discussion: The easement granted to Columbia Gas’ predecessors, was the right to “lay, maintain, operate and remove pipeline for the transportation of gas and appurtenances necessary to operate said pipeline” through the property of Grantor (Drewry’s predecessor in interest). Furthermore, the easement agreement provided:

Grantor shall not construct or permit to be constructed any house, structures or obstructions on or over or that will interfere with the construction, maintenance, or operation of the pipeline or appurtenances constructed hereunder and will not change the grade of said pipeline.

The issue was whether the improvements were constructed “on or over” the pipeline or otherwise interfered with the construction or maintenance or operation of the pipeline. The Court found that the deck and fence were constructed directly over the pipeline. One of the supporting posts for the deck was located within 26 inches of the pipeline. The bottom of the floor joists for the deck were 27 inches from the ground, and the workers excavating the pipeline had to use hand shovels and maneuver between the decking support joists to dig. The pool, which contained approximately 10,000 gallons of water, was constructed within 22 inches of the pipeline. The Court found based upon testimony presented that it would be unsafe for pipeline employees to attempt to excavate the pipeline with a pool full of water weighing approximately 70,000 pounds within 22 inches of the pipeline. The pool could not be quickly and safely drained in the event of emergency and due to the location of the pool, the workers would be unable to use equipment to dig up the pipeline and/or tapper the edges to prevent a cave-in due to the close proximity of the pool. The Court concluded the pool interfered with the operation and maintenance of the pipeline. Hence, all of the improvements violated the terms of the easement. As such, they were a continuing trespass and material encroachment on Columbia Gas’ right to free and continuous use of the easement. Furthermore, the Court found (i) that irreparable harm would be caused to the Drewry’s, their family, pipeline workers and the community if the improvements were located in the easement, (ii) there was no adequate remedy at law, (iii) the benefit to the community, Columbia Gas, and Drewry outweigh any cost of removing the

21 VA. CODE ANN. § 56-265.17 (West 2016).

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obstructions, and (iv) the public interest would be served by the issuance of the injunction as it would provide for reliable delivery of natural gas, significantly lessen the danger of damage to persons and property, and discourage further encroachments upon pipeline easements. On the issue of reimbursement for costs, while the Court found that Drewry’s actions increased the difficulty in uncovering the pipeline, the Court could not find from the evidence presented that Columbia Gas differentiated between the cost that would have been incurred had the pipeline not been obstructed verses the cost of digging up the pipeline free and clear of obstruction. Since the damages to the pipeline were not caused by the construction of the deck, fence and pool, and given the manner in which damages were presented by Columbia Gas, the Court denied Columbia Gas’ claim for monetary damages.

E. Comm’r of Highways v. Sadler, No. CL14-292, 2016 Va. Cir. LEXIS 39 (2016)

Facts: The Respondent owns a convenience store and gas station at the intersection of Cox Road and Boydton Plank Road in Dinwiddie County, Virginia. In 2013, the Highway Commissioner of the Commonwealth of Virginia (“Commissioner”) filed a Certificate of Take to acquire fee simple land, temporary construction easements, and a utility easement over land owned by Respondent adjacent to existing highways. The Commissioner began negotiations with the Respondent for the purchase prior to the acquisition. Respondent rejected the Commissioner’s offer, and the Commissioner filed the Certificate of Take. Subsequently, the Commissioner moved the Court to amend the Certificate of Take to reduce the fee taken as a result of allowing wider traffic entry points from the highway into the Respondent’s property and allowing the Respondent’s existing digital sign to remain in the utility easement. The Commissioner asserted that the Respondent requested these changes to the highway project plan during negotiations, and the Commissioner moved for the changes as a concession to the Respondent. The Respondent consented to the Motion to Amend, acknowledging at the hearing that Virginia Code § 25.1-20422 and case law allowed the amendment. Respondent later objected to the Court’s jurisdiction when the reduction in property taken resulting in the amendment of the Certificate of Take revealed that the original take in the Certificate was more property than necessary, thus violating Article I, Section 11 of the Virginia Constitution23, as codified in Virginia Code Section § 1-219.124. The issue before the Court was whether the amendment of the Certificate of Take by the Commissioner reducing the amount of property taken nullified the bona fide offer to purchase as a condition precedent for the circuit court’s jurisdiction to go forward with the condemnation proceeding. Holding: A reduction in property taken does not nullify prior offers to purchase by the Commissioner, absent a challenge to the Commissioner’s good faith in negotiations. Discussion: Respondent was not presenting a constitutional challenge to the eminent domain and condemnation statutes. The Respondent contended that the amendment changed the amount of property taken, thus rendering the Commissioner’s offer to purchase no longer bona fide pursuant to the statutory predicate for the petition found at Virginia Code § 25.1-204. Absent a bona fide offer, the Court has no jurisdiction to proceed with the condemnation matter. The Court was not convinced by Respondent’s argument as it would have required the Court to overlook legislatively enacted processes for disposition or reconveyance of express property taken by the Commission detailed in Virginia Code §§ 33.2-1005-101025, all codified after amendment of Article I, Section 11 of the Virginia Constitution. The Court reasoned that these sections would be unnecessary if the legislature intended the exacting standard of limiting the Commissioner’s take to no more than necessary. In addition, the Court, looking to the case of State Highway & Transportation Commissioner v. Herndon26, found the controlling precedent to be that absent a showing

22 VA. CODE ANN. § 25.1-204 (West 2016). 23 VA. CONST. art. I, § 11. 24 VA. CODE ANN. § 1-219.1 (West 2016). 25 VA. CODE ANN. § 33.2-1005-1010 (West 2016). 26 State Highway & Trans. Comm’r v. Herndon, 225 Va. 380, 302 S.E.2d 55 (1983).

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of bad faith, mere incorrectness in the quantum of the offer was insufficient to make out a violation of Virginia Code § 25.1-204. Since the Respondent did not challenge the Commissioner’s good faith in negotiations, the Court concluded that the Commissioner made a bona fide offer to purchase the Respondent’s property. Furthermore, the Court found that the position urged by the Respondent, the dismissal of a petition when the Certificate of Take is amended downward, would obligate the Commissioner to be perfect when planning, designing, offering to purchase, and recording certificates of take in eminent domain cases. This was not practical and would result in an imbalance of negotiating power between the Commissioner and landowners. The Court noted that negotiation contemplates adjustments to sales prices as well as adjustments to the amount of property or interest sold. The process encourages each party, dealing fairly, to make concessions in price and/or quantum of property in order to discover and reach a mutually acceptable exchange. Respondent’s position would hinder negotiations and only serve to frustrate the public policy of avoiding the expense and delay of litigation through consensual and balanced bargain and sale.

F. Cornelius v. Childers, No. CL16-596-00, No. CL 16-596-01, 2016 Va. Cir. LEXIS 148 (2016)

Facts: Defendant landowner, Ms. Childers, who leased her acreage to another to raise cattle and grow hay, replaced almost 1,700 feet of the fence that surrounded her property and ran along the division line with her eastern neighbor, Mr. Cornelius. When she did so, she pushed roughly one-half of the old wire fence and fence posts onto his adjoining land. Cornelius complained of the dumping to Childers and she removed some of the debris. He then filed a Warrant in Debt against her for the cost of the remaining cleanup. Approximately five (5) months later, Defendant landowner Childers became Plaintiff landowner in a new Warrant in Debt that she filed against Cornelius, for one-half of the cost of rebuilding the fence between their properties. Childers claimed that grass and brush growing on the Cornelius property touched and intertwined with some of the fence, thereby causing the wire on the much-patched and repaired, forty to fifty-year-old fence, to rust and the fence posts to rot, all of which she theorized forced her to have to replace the fence, and alleging that Cornelius should reimburse her for one-half of the cost. She also argued that Virginia Code § 55-31727 required cost sharing because the fence she constructed was a boundary/division fence. She contended that the giving of notice to repair or replace the fence was statutorily optional based on the fact that Virginia Code § 55-31928 used the word “may” when setting forth the notice provisions. The two (2) Warrant in Debt cases were consolidated for trial.

Holding: Childers was responsible for the entire cost of replacing the fence, including the cleanup, because her evidence was not as persuasive as that of Cornelius regarding the cause of damage to the fence. The exception to Virginia Code § 55-317 obviated Cornelius’ obligation to share the cost of the fence where he chose to let his land lie open, and Cornelius had no liability for half of the cost of rebuilding or repairing the fence because Childers did not give the notice required by Virginia Code § 55-319.

Discussion: The Court found that Childers’ evidence and arguments tended to exaggeration, hyperbole, and innuendo. The Court had difficulty believing Childers’ theory that posts buried in the ground and wire exposed to the elements for 50 years would not have rotted and rusted but for the fact that the weeds and brush on the Cornelius land touched or intertwined with the fence in some places. Hence, Childers could not avail herself of the case authority which states “encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to [adjoining property]…”.

The answer to the question of whether Cornelius was obligated to share in the cost of the fence was found in reviewing Virginia Code § 55-317, which states:

27 VA. CODE ANN. § 55-317 (West 2016). 28 VA. CODE ANN. § 55-319 (West 2016).

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Adjoining landowners shall build and maintain, at their joint and equal expense, division fences between their lands, unless one of them shall choose to let his land lie open or unless they shall otherwise agree between themselves. (Emphasis added.)

There was no fence on the northern boundary of Cornelius’ land and only a partial fence on the southern boundary. The Court found that Cornelius had chosen to let his land lie open. Hence, the exception to Virginia Code § 55-317 obviated his obligation to share in the cost of the fence.

In order for an adjoining landowner to become liable for one-half of the cost of the fence, Virginia Code § 55-319 requires the person intending to repair a fence to provide the adjoining landowner with thirty days’ written notice. Use of the word “may” in the statute describing the notice to be given simply gives the person wishing to repair the fence the option of recovering one-half of the cost of the fence from his or her adjoining neighbor . Since no notice was given to Cornelius, he has no liability for the cost of rebuilding or replacing the fence.

Based on the above findings, the Court ruled that Childers was also responsible for all of the cleanup costs. Cornelius presented sufficient evidence to the Court of the money he expended to clean up the old fence and fence posts Childers pushed onto his property, allowing the Court to grant judgment on this issue in his favor and impose money damages against Childers.

G. Kline v. Vickers, CL15009542-00, 2016 Va. Cir. LEXIS 50 (2016)

Facts: The Klines and the Vickers own adjoining real estate tracts that were carved from property formerly owned by William and Deborah Dail (the “Dails”). When the Vickers tract was conveyed to the Vickers’ predecessor in title, the deed contained the following language:

SUBJECT TO that certain thirty-foot (30’) easement of ingress and egress along that certain existing soil road as set forth and identified on the aforesaid Plat. Reference is here made to said Plat for a further and more particular description of said easement.

The deed of conveyance to the Vickers contained the same provisions. When the Kline tract was conveyed to the Klines’ predecessor in title, the deed contained the following language:

TOGETHER WITH the perpetual right to use that certain thirty-foot (30’) easement along that certain existing soil road as set forth and identified on the aforesaid Plat for the purposes of ingress and egress. Reference is here made to said Plat for a further and more particular description of said easement.

The deed of conveyance to the Klines contained the same provisions. The Dails had the land surveyed prior to deeding the two parcels. The Plat shows the entire width and boundary of both the Vickers and Kline tracts, the entire length and breadth of Soil Drive and Soil Road, with the road being designated as “30’ Easement of Ingress and Egress Along Existing Road”. Both Soil Drive and the Existing Soil Road lie completely within the property boundaries of the Vickers and Kline Tracts and are shown on the Plat. The question presented to the Court was whether the two deeds at issue containing “Subject to” and “Together With” that certain thirty-foot (30’) easement of ingress and egress and a Plat showing the designated location was sufficient to grant and create an easement.

Holding: The Court found that an express easement was created for the benefit of the Kline tract.

Discussion: The Court found, in examining the language in the Deeds and Plat, that the intention of the original parties was to create an easement. The language in the deeds for the Vickers’ tract clearly stated that the conveyance was “Subject To” a specific easement; a thirty-foot (30’) easement for ingress and egress as more particularly delineated on the Plat. The Plat shows the entire length, width and location of the easement upon the already existing soil road. The Court distinguished the language in the Vickers’ deed from the “Boiler Plate” language typically included in every deed which provides that the conveyance is “Subject to all easements, restrictions and conditions of record”, and noted that the standard “Boiler

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Plate” language does not create an easement. The Court was not persuaded by defendants’ argument that if the deed does not state to whom the easement is granted and the purpose is ambiguous, there is no easement. The Court acknowledged that prior cases have held that to create an express easement, the property which benefits from the easement must be identified in some manner, but noted the long-standing legal rule that the beneficiary of a grant need not be specifically designated by name if the grantee is sufficiently described so as to be distinguished from all others. In the case at hand, the Court stated that there could be no other meaning or rational construction of the provisions included in both the deeds to the Vickers tract and the deeds to the Kline tract other than that the Vickers property is burdened by the easement and the Klines are the beneficiaries of the easement as shown on the plat.

H. Mount Aldie, L.L.C. v. Loudoun Cnty. Bd. of Zoning Appeals, No. 91095, 2016 Va. Cir. LEXIS 91 (2016)

FACTS: John A. Andrews, a manager of Mount Aldie, LLC (“Mt. Aldie”) removed fallen trees and caused beetles to be deployed to combat a fatal infestation of the Hemlock Woolly Adelgid on the Indian Spring Trail that runs parallel to Mt. Aldie’s property. The Board of Zoning Appeals (BZA) issued a Notice of Violation claiming four separate violations, asserting that Mt. Aldie had an obligation to file permit applications for such activities and failed to do so. Mt. Aldie filed a timely appeal and a BZA hearing was convened, after which the BZA concluded that clearing a trail on one’s land of dead and diseased trees is silviculture and covered under the zoning ordinance as an agricultural operation.

HOLDING: The Circuit Court agreed with the BZA that clearing a trail on one’s land of dead and diseased trees is silviculture and covered under the Loudon County Zoning Ordinance (“LCZO”) as an agricultural operation. The court adjudged that the decision of the BZA to deny Mt. Aldie’s appeal is reversed, and that the Notices of Violation are vacated.

DISCUSSION: Loudon County Zoning Ordinance § 5-1503(B)29 provides that “the standards contained in this Division shall not apply to any lawful agricultural operation.” Loudon County and the Loudon County Department of Planning and Zoning (“LCPZ”) assert that Mt. Aldie is not entitled to that exemption because the trail was not shown as a facility to be constructed on the map attached to the Forest Management Plan approved by Loudon County, and Mt. Aldie did not submit a Farm Conservation Plan as the County alleged is required by the LCZO. Mt. Aldie maintains that it was appropriate silviculture management to repair the trail in order to remove dead and diseased trees, and that the violations issued were improper because the County lacked jurisdiction.

The circuit court agreed with the BZA’s findings that Mt. Aldie’s clearing of a trail on its land of dead and diseased trees is a “silvicultural activity” as that term is defined in Virginia Code § 10.1-1181.130, and is an agricultural operation. The court held that there was sufficient evidence to support the BZA’s finding that Mt. Aldie did not violate the Forestry Management Plan. The court held that the BZA should have concluded that neither it nor the LCPZ had jurisdiction to issue the Notices of Violation because the Zoning Ordinance sections identified in the Notices of Violation do not apply to agricultural operations such as silviculture.

The circuit court also held that the County’s contention that silvicultural exemptions mandated by the Zoning Ordinance are only applicable if an applicant files a Farm Conservation Plan was not before the Board of Zoning Appeals or contained anywhere in the BZA appeals record.

I. New Bethel Estates, L.L.C., v. Howell, No. CL15009404, 2016 Va. Cir. LEXIS 44 (2016)

FACTS: A dispute arose between the developer of a subdivision and a homeowners’ association. New Bethel Estates, LLC (“Declarant”) and Falling River, Ltd. developed a subdivision known as New Bethel

29 LOUDON COUNTY, VA. ZONING ORDINANCE § 5-1503(B) (1993). 30 VA. CODE ANN. § 10.1-1181.1 (West 2016).

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Estates and New Bethel Commons. Falling River Ltd. subsequently ceased to exist. The Declarant recorded Declarations that established the New Bethel Property Owner’s Association (“Association”).

The Declarant filed a declaratory judgment on the issues of (1) whether the Declarant needed consent of Falling River Ltd. to amend the Declarations, (2) whether the Association could assess the Declarant for charges related to road maintenance expenses, and (3) whether the Association could bar the Declarant from voting in the Association due to delinquent road maintenance assessments.

HOLDING: The court held for the Declarant.

DISCUSSION: (1) The court held that although the express terms of the Declaration require the consent of Falling River for any amendments, its consent is not required for two reasons: first, Falling River cannot consent nor object to amendments to the Declaration because it ceased to exist, and the Declarant cannot be required to obtain the consent of a non-existent entity; second, an objection by Falling River would not be reasonable because it no longer has any interest in the development. The court rejected the Association’s argument that the consent requirement protected lot owners. The court found that the consent provision was included to protect Falling River’s own interests, which no longer existed. The Association also argued that the Declaration’s provision that “covenants and restrictions may be amended, deleted or added by the affirmative 75% vote of the members” is an additional requirement for the Declarant to amend the Declarations. The Court held that it was not an additional requirement, but simply another way in which covenants and restrictions may be amended, deleted, or added to. The Association further argued that under Virginia Code § 55-509.231, because the Declarant is not on the board of directors and does not hold a majority vote in the Association, control over the Declaration passed to the Board. The court rejected this argument as well, explaining that although Virginia Code § 55-509.2 directs the point in time at which the developer/declarant must deliver documents, records and insurance policies to the Board to be used and held on behalf of the Association, it does not deprive the Declarant of any authority granted by the terms of the Declaration. Finally, the Defendants argued that Virginia Code § 55-515.232 only allows unilateral changes to the Declaration to be made for a period of 5 years. The court rejected this argument as well, holding that where the Declaration speaks to the issue (as in this case), the Declaration controls over default provisions in the Code.

(2) The Court held that the Association may not assess the Declarant dues for road maintenance. The court analyzed the Declaration which provides that the responsibility of the tract owners for the maintenance of the road begins once the Declarant sells the tract, that the Declarant is responsible for road upkeep on any unsold tract until the Declarant turns them over to the Association, and that at that time the roads will remain private, and the Association shall maintain all common areas, right of ways, and areas, and shall assess each Lot amounts necessary for the improvement and maintenance of said roads, not to exceed $250.00 per lot annually. Thus, the court determined that the Association is responsible for the road maintenance after a lot is sold and at which time the Association is vested with the authority to assess the lot owner and the lot owner is obligated to pay the assessment. Therefore, the Association cannot assess the Declarant for such charges related to road maintenance.

(3) The court held that the Association could not bar the Declarant from exercising its right to vote due to delinquent assessments. The Association argued that because no provision in the Declaration prevents suspension of the right to vote, such right can be suspended by bylaws. The court rejected this argument, citing White v. Boundary Ass’n33 for the holding that where a declaration expressly grants a unit owner the enjoyment of a common area, the plain terms of the declaration are subject to change only under the proper vote to change the declaration, not passage of a bylaw or rule. The court determined that because the

31 VA. CODE ANN. § 55-509.2 (West 2016). 32 VA. CODE ANN. § 55-515.2 (West 2016). 33 White v. Boundary Ass’n, 271 Va. 50, 624 S.E.2d 5 (2006).

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Declaration grants the Declarant the right to vote, this right cannot be taken away by the passage of bylaws unless the Declaration or a statute specifically grants such authority.

J. Southern Bank & Trust Co. v. Woodhouse, No. CL15009939-00, 2016 Va. Cir. LEXIS 81 (2016)

Facts: Defendants, Earl C. Woodhouse, Jr. and Sandra D. Woodhouse obtained thirteen loans from the Bank of the Commonwealth between 2008 and 2010. Twelve of the loans were secured by deeds of trust on various real property owned by the Defendants located in the cities of Chesapeake and Norfolk. Each deed of trust named Richard J. Tavss and Edward J. Woodard as trustees. Following the failure of the Bank of the Commonwealth in 2011, Plaintiff Southern Bank and Trust Company acquired all of its assets, including the notes signed by the Defendants. Plaintiff executed Deeds of Appointment of Substitute Trustee (“Deeds of Appointment”) on September 18, 2014, November 12, 2014 and January 2, 2015 appointing Stewart Trustee Services, LLC (“Stewart”) as substitute trustee under each of the deeds of trust. Defendants defaulted on their loan obligations, and Stewart timely mailed foreclosure notices to Defendants pursuant to Virginia Code § 55-59.1(A)34 stating that the properties listed as security for the loans would be sold. Subsequent to the date the foreclosure notices were mailed, the Deeds of Appointment appointing Stewart as substitute trustee were recorded. Stewart held the foreclosure sales for each property. Thereafter, Plaintiff filed suit to recover amounts still due under the loans after the foreclosure sales. Defendants filed a counterclaim (1) alleging the foreclosures were invalid because (a) the deeds of trust mandated that only individuals with residences could be appointed as substitute trustee, and (b) Stewart’s appointment as substitute trustee was not yet effective when it mailed the foreclosure notices to Defendants, thus rendering the notices inadequate; (2) asserting a cause of action for actual and constructive fraud based on allegations that Plaintiff knowingly and intentionally misrepresented the amount required to satisfy one of the Loans by including improper insurance charges, overstating interest amounts and overstating attorney’s fees and costs in the payoff amount, all of which Defendants relied upon to their detriment and consequently suffered emotional distress and other injuries stemming from their loss of title to the property serving as security for the loans; and (3) asserting a cause of action for breach of an implied covenant of good faith and fair dealing. Plaintiff filed a demurrer to the counterclaim.

Holding: The Court (1) sustained Plaintiff’s demurrer to the invalid foreclosure claims and the cause of action for breach of an implied covenant of good faith and fair dealing, without leave to amend, and (2) overruled Plaintiff’s demurrer to the cause of action for actual and constructive fraud.

Discussion: Defendants’ argument that the deeds of trust mandated only individuals with residences could be appointed as substitute trustees centered on the fact that the deeds of trust required the writing appointing the substitute trustee to indicate “the name of the successor trustee and the county, city or town in which he or she resides…”. The Court found that other than the personal pronoun and word “resides” references, there was no indication in any deed of trust to suggest that the parties intended to limit the lender to using individual persons as trustees, and in fact, noted that the deeds of trust recited business addresses and not residences for the original individual trustees. In the absence of clear language in the deeds of trust indicating that the parties intended otherwise, the Court concluded that the deeds of trust permitted the appointment of a limited liability company to serve as substitute trustee, notwithstanding the “he or she resides” clause. On the issue of inadequate notice of foreclosure, Defendants asserted that Stewart’s appointment did not take effect until the Deeds of Appointment were recorded, and since the foreclosure notices were sent before recordation, Stewart was not the trustee when the notices were sent, thus rendering the foreclosures ultra vires. The Court concluded that Stewart’s appointment became effective upon execution of the Deeds of Appointment, noting that while the deeds of trust contemplated the recordation of instruments appointing a substitute trustee, the deeds of trust did not establish recordation as a precondition to the effectiveness of an appointment, and the Virginia Code does not require that a deed of appointment be recorded prior to the appointment of a substitute trustee becoming effective. Hence, Stewart was the properly-appointed substitute trustee when it mailed the foreclosure notices to Defendants. As to the implied covenant of good faith and fair dealing, the Court noted that Virginia does not recognize an

34 VA. CODE. ANN. § 55-59.1(A).

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independent action for breach of the implied covenant in cases that are not governed by the Uniform Commercial Code. Finally, the Court found that Plaintiff’s duty to provide an accurate payoff statement is imposed by Virginia Code § 6.2-418(A-B)35, as opposed to a duty arising out of contract, and that the elements of actual and constructive fraud had been pled by Defendants with sufficient particularity and specificity to permit Plaintiff to assert its defense to the Counterclaim.

K. Vaughan v. S.L. Nusbaum Realty, Co., No. CL15-5895-00/01, No. CL15-5897-00/01, 2016 Va. Cir. LEXIS 183 (2016)

Facts: Travis C. Vaughan and Alexander B. Goldenberg ("Plaintiffs") alleged they sustained injuries when they were struck by a falling limb from a tree located on an apartment complex owned by S.L Nusbaum Realty Co. and 1066 Limited Partnership ("Third Party Plaintiffs"). Dominion Virginia Power ("DVP") had an easement granted by the Third Party Plaintiffs. The easement granted DVP the right to construct, operate and maintain a pole line, and the right to trim, cut and keep clear all trees, limbs and undergrowth and other obstructions along or adjacent to the lines "that may in any way endanger or interfere with the proper and efficient operation of the same."

Plaintiffs filed a complaint in Circuit Court against the Third Party Plaintiffs, who then impleaded DVP and Dominion Resources, Inc. ("DRI") (collectively, "Defendants"), alleging that Defendants had responsibilities of the dominant estate regarding the easement, and had a duty to maintain the easement, which included maintaining trees on the easement. The Third Party Plaintiffs also argued that they were entitled to indemnification and contribution for damages for which they are liable. Defendants demurred, arguing that Third Party Plaintiffs failed to establish (1) Defendant's contractual duty to maintain the tree, (2) indemnity or contribution because Third Party Plaintiffs have not been found liable, and (3) DRI, DVP's parent company, cannot be held vicariously liable. Third Party Plaintiffs responded, refuting Defendants' arguments, but conceded that claims against DRI should be dismissed for lack of vicarious liability or independent negligence.

Holding: (1) The duty to maintain an easement right of way does not impose an affirmative duty upon an owner of the dominant estate to maintain the easement beyond those actions necessary to maintain the easement in a manner consistent with the use allowed. (2) A defendant who is at fault--whether by active negligence or passive negligence--is precluded from seeking equitable indemnification from another defendant.

Discussion: Looking to Virginia Supreme Court precedent as well as decisions in other jurisdictions, the Circuit Court found that an owner of a dominant estate has the duty to maintain the easement in a manner consistent with the use allowed. This means an owner of the dominant estate has a duty to inspect and make repairs as necessary. In the current case, this included trimming, cutting, and clearing trees, but, as indicated by the easement, only to the extent that such trees or parts thereof would "endanger or interfere with the proper and efficient operation of the" power lines and related equipment and accessories. DVP would have been liable if they failed to clear portions of the tree that grew near power lines, improperly trimmed the tree to the danger of the public, or endangering the health of the tree through improper trimming. Here, however, they were not liable for failing to trim the tree in a manner outside the purpose of the easement.

Equitable indemnification arises when a party without personal fault is nevertheless legally liable for damages caused by the negligence of another. The innocent party can then recover from the negligent actor for the amounts paid to discharge the liability. However, the important factor to look at is not whether the negligent actor was actively negligent or merely passively negligent, but whether there is simply a presence of personal fault. Therefore, a defendant who is at fault is precluded from seeking equitable indemnification from another defendant. Since the Circuit Court found no contractual or vicarious liability present, it sustained the demurrer for the defendants.

35 VA. CODE ANN. § 6.2-418(A-B) (West 2016).

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L. Wimmer v. R&R Joint Ventures, Inc., No. CL14-412 2016, Va. Cir. LEXIS 65 (2016)

FACTS: Plaintiffs purchased a home with a sign easement area containing a large stone monument with a wooden sign that had “Hunter’s Green” carved into it. The deed of purchase states that the conveyance is “expressly made subject to any and all recorded conditions, restrictions and easements which may affect the title to the property hereinabove described,” with the notation that “no title examination has been performed and no certification as to status of title is made by attorney preparing this deed.” A later title search revealed that the property was subject to a sign easement.

In 2014, Plaintiffs removed the stone monument and the sign itself. The Defendants notified Plaintiffs that they were violating the sign ordinance and to stop destroying the sign. The Plaintiffs subsequently put up a six-foot fence around their back yard, blocking the sign and sign easement from being visible from the public highway and from at least one of the residential streets surrounding part of the lot. After determining that the fence violated a Botetourt County fence ordinance, the fence was reduced in size to four feet.

HOLDING: The Supreme Court of Virginia held that the sign easement was properly created and formed as an express easement that ran with the land, the sign easement was not abandoned, and Plaintiffs violated the sign easement by taking down the sign and the stone monument and destroying a large portion of the sign monument. It also held that they violated the sign easement by erecting a fence preventing public viewing of the sign.

DISCUSION: The Plaintiffs filed a chancery cause against the dissolved corporate developer of the subdivision, claiming that the sign easement had been abandoned and that it constituted a cloud on their title and should be removed. The property owners in the subdivision and two former officers of the dissolved development corporation were made defendants; Defendant developer did not respond. Plaintiffs asked for a declaratory judgment that no sign easement was ever created.

Defendant landowners filed a counterclaim seeking injunctive relief to prevent the Plaintiffs from interfering with their rights in the sign easement, asking for a mandatory injunction to require the Plaintiffs to remove the fence, for a money judgment against the Plaintiffs for damage and destruction done to the stone monument and sign, and for attorney fees.

The circuit court considered testimony that the sign and monument did not appear to be deteriorated and looked good, that some landowners used it to give directions to their homes, and that landowners felt it was a landmark they wanted back. The court also took into account that the plat map of the subdivision clearly showed the existence of a sign easement drawn onto the tract in question, with a dedication portion containing the following language: “The said owner does, by virtue of recordation of this plat, dedicate in fee simple to the county of Botetourt all the land embraced within the streets of this subdivision and all the easements are hereby dedicated for public use.”

The court determined that the language of the deed was similar to the deed and plat in Strickland v. Barnes36, in which the court held that when language is used in a deed subjecting a conveyance to a particular easement of record as shown on a specific plat, those become “words of conveyance.” The court held that in the present case, the intent of the Grantor was clear – the sign easement was plainly marked on the plat of Plaintiff’s real estate and contained a dedication for public use, making it an encumbrance on Plaintiff’s land. Having determined that the sign easement was properly created as an express easement, the court held that short of abandonment, its existence continues.

Plaintiffs then argued that even if a sign easement existed, it had been abandoned based on the failure of anyone to repair or maintain the sign monument. The court found no evidence of abandonment of the sign easement, and on the contrary, witnesses testified that they used the sign as a reference point to help visitors locate their address. Because the Plaintiffs did not prove the dominant estate intended to

36 Strickland v. Barnes, 209 Va. 438, 164 S.E.2d 768 (1968).

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abandon the easement by clear and convincing evidence, the court held that the sign easement was not abandoned.

The court concluded that the Plaintiffs violated the sign easement by taking down the sign, destroying a large portion of the sign monument, and by erecting a fence that prevented the public viewing of the sign and sign easement area.

III. FEDERAL COURT CASES

A. Thomas v. Carmeuse Lime & Stone, Inc., 642 Fed.Appx. 253 (4th Cir. 2016)

Facts: This case involves three parties and three separate disputes over the ownership rights of approximately 150 acres of land in Botetourt County. Justin and Irene Thomas (“Thomas”) are the owners of the surface of the property. Carmeuse Lime & Stone, Inc. (“Carmeuse”) and Thomas M. Helms, Sr. (“Helms”) share ownership of the subsurface mineral rights of the property.

Greeneville B. W. Reynolds (“Reynolds”) owned both the surface and subsurface rights until 1849 when he conveyed the mineral estate to James S. Wilson (“Wilson”). The deed to Wilson (the “1849 Deed”) described the mineral estate as containing “all the stone or rock of every kind, and particularly all limestone, or quarries of limestone, or other kind of stone, in and upon every portion” of the property. The deed also contained a “Yard Restriction” prohibiting blasting, quarrying or taking away any stone “within the yard attached to the said Reynolds’ present dwelling house. . .”

After the death of Wilson, the mineral estate was sold at auction and split into two parcels, which were conveyed by two separate deeds to the same heirs of Wilson. The first deed, dated December 23, 1901 (the “1901 Deed”), conveyed the mineral rights under the property excepting out a 300-foot strip along the tract’s southwestern boundary. The mineral rights to the 300-foot strip were included in the second deed dated July 26, 1902 (the “1902 Deed”).

The heirs of Wilson recombined the interests conveyed in the two deeds and conveyed them to Wilson Lime Company (“Wilson Co.”) which owned them until 1992 when they were conveyed in part to Carmeuse and in part to Helms. The deed to Carmeuse (the “1992 James River Deed”) conveyed the property from the 1901 deed, but also provided:

All of the mineral rights including all rights and privileges necessary to quarry and remove the stone, on half the veins of limestone on [the Reynolds Tract] ... said half to be measured along the veins of limestone from the [Reynolds Tract’s northeastern boundary] in a southerly direction . . . . [emphasis added]

The deed to Helms (the “1992 Helms Deed”) did not mention the mineral estate, but did state “[i]t is the purpose of this Deed to convey all of the property in this area owned by Wilson Lime Company, Inc., not previously conveyed by [the 1992 James River Deed],” thus conveying to Helms whatever mineral rights underlying the property that were not conveyed to Carmeuse.

Thomas purchased the property in 2002. An eighteenth-century stone house was located on the northwestern portion of the property. By 2012, Carmeuse had begun preparations to extract the limestone from the property.

Lower Court Proceedings: Thomas filed suit against Carmeuse in the United States District Court for the Western District of Virginia seeking declarations to clarify the nature and extent of Carmeuse’s right to the property, including (1) the validity of the Yard Restriction, (2) whether modern quarrying technology could be used to extract the limestone, and (3) what interests were held by Carmeuse. Helms intervened to protect his interest in the property.

The District Court ruled (1) that the Yard Restriction was invalid, (2) that Carmeuse and Helms are entitled to use modern quarrying technology to extract the limestone, and (3) that Carmeuse and Helms

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each own half of the mineral estate underlying the property. Thomas appealed the decision. Carmeuse appealed the decision that Helms owns half the mineral estate, not just a 300-foot strip along the tract’s southwestern border.

Holdings: The Fourth Circuit vacated in part and affirmed in part, finding;

1. The Yard Restriction was not void under the doctrine of repugnancy;

2. Extraction of the limestone was not limited to methods of quarrying available at the time of the original conveyance;

3. Carmeuse and Helms together own all of the stone on the property; and

4. The mineral estate is split evenly between Carmeuse and Helms.

Discussion:

1. The Fourth Circuit first addressed the Yard Restriction. The District Court ruled that the Yard Restriction was void under the doctrine of repugnancy and because the house was no longer used as a residence. In interpreting a deed, effect is to be given “to every part of the instrument, if possible,” and interpret the deed’s terms “to harmonize them, if possible, so as to give effect to the intent of the parties.” Under the doctrine of repugnancy, where there is an irreconcilable conflict between the granting clause and other parts of the deed, such that both cannot be true, thus rendering it impossible to discover the intention of the parties, the granting clause will prevail37. The Fourth Circuit reasoned that the granting clause in the 1849 Deed and the Yard Restriction can both be true. It is not uncommon for a person to hold title to property, yet be unable to use some portion of the property. Thus, the doctrine of repugnancy does not apply and the Yard Restriction is valid. Further, the Court found that there was no suggestion in the 1849 Deed that the Yard Restriction was conditional upon the use of the house as a residence. The Fourth Circuit found that the Yard Restriction was valid and vacated the District Court’s ruling that the Yard Restriction was invalid.

2. Next, the Fourth Circuit considered the contention of Thomas that Carmeuse is prohibited from engaging in modern quarrying because the 1849 Deed contemplated only the quarrying techniques practiced at the time. Under Virginia law, the owner of a mineral estate may adopt such machinery and modes of mining as are ordinarily used and is not limited to methods as were in existence when the grant of the mineral interests was made, but may keep pace with the progress of society and modern inventions. The Court declared “Virginia law is clear that [Carmeuse is] entitled to employ modern technology.” The Fourth Circuit affirmed the District Court’s declaration that Carmeuse and Helms are entitled to use modern quarrying techniques.

3. Thomas argued that the 1901 Deed and the 1902 Deed conveyed only the vein of limestone running across the southwestern portion of the property, and thus this is all that Carmeuse and Helms own. The District Court concluded that the two deeds conveyed the entirety of the mineral estate and thus Carmeuse and Helms own all of the stone and quarrying rights. The Fourth Circuit applied basic rules of construction of deed to conclude that the two deeds conveyed all of the minerals under the property. Under Virginia law, “[w]here the language of a deed clearly and unambiguously expresses the intention of the parties, no rules of construction should be used to defeat that intention.” The 1902 Deed clearly conveyed “all the stone” while the 1901 Deed used both the specific term “limestone” and the generic term “stone.” The Court concluded that when considering the surrounding circumstances of the conveyances, that the 1901 Deed, like the 1902 Deed, conveyed the entire mineral estate. Thus, Carmeuse and Helms owned all of the

37 For example, where a deed grants a fee simple estate in property, but the preamble indicates that

the grantee is receiving only a life estate, both provisions cannot be true and the granting clause will prevail.

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mineral estate. The Fourth Circuit affirmed the District Court’s declaration that Carmeuse and Helms own “all the stone” underlying the property.

4. Carmeuse contended that it owned more than half of the mineral estate under the property. The District Court disagreed and found that Carmeuse and Helms each own one-half of the mineral estate. Again the Fourth Circuit applied basic rules of construction for deeds to conclude that Carmeuse and Helms each own one-half of the mineral estate. When a deed’s language is explicit and the intention thereby is free from doubt, such intention is controlling. The 1992 James River Deed clearly stated that the mineral rights being granted were “on half of the veins of limestone” then went on to specify how to determine the boundaries of that half, the intention is clear. The Fourth Circuit affirmed the holding of the District Court that the mineral estate was evenly split between Carmeuse and Helms.

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PARRISH v. FANNIE MAE: BROADENING THE MEANING OF “TRYING TITLE”

Kathryn Byler* and Bryan S. Peeples**

In June of 2016, the Supreme Court of Virginia decided Parrish v. Fannie Mae,1 setting a new precedent for the way in which matters “concerning” title are tried in Virginia Courts. What began in the General District Court of Hanover County as a simple unlawful detainer action2 quickly became a complex question of subject matter jurisdiction.

Background

The Parrishes conveyed their real property to a trustee of a deed of trust. After foreclosure, the trustee conveyed the parcel by trustee’s deed to Federal National Mortgage Association, or “Fannie Mae.” Fannie Mae sent the Parrishes a notice to vacate and filed a summons for unlawful detainer in the General District Court of Hanover County. The Parrishes defended by alleging breach of trust, including in their defense that the deed of trust incorporated 12 C.F.R. §1024.41(g):

If a borrower submits a complete loss mitigation application after a servicer has made the first notice or filing required by applicable law for any judicial or non-judicial foreclosure process but more than 37 days before a foreclosure sale, a servicer shall not move for foreclosure judgment or order of sale, or conduct a foreclosure sale, unless:

(1) The servicer has sent the borrower a notice . . . that the borrower is not eligible for any loss mitigation option and the appeal process . . . is not applicable, the borrower has not requested an appeal within the applicable time period for requesting an appeal, or the borrower's appeal has been denied;

(2) The borrower rejects all loss mitigation options offered by the servicer; or

(3) The borrower fails to perform under an agreement on a loss mitigation option.3

The Parrishes claimed that, because they had submitted a loss mitigation application within 37 days of the foreclosure sale, Fannie Mae was prohibited from foreclosing. The General District Court

* Kathryn N. Byler is an adjunct professor at Regent University School of Law and practicing

attorney with Pender & Coward, PC. She holds a Martindale-Hubbel AVA-Rating and focuses her practice on real estate, guardianships/conservatorships and trusts and estates. Kathryn serves on the VSB Real Property Section Board of Governors, as chair of the VSB Resolution of Fee Disputes Committee and chair of the Virginia Beach Bar Association General District Court Judicial Liaison Committee.

** Bryan Peeples is an active duty officer in the United States Navy. He holds the rank of Commander and serves as the Lead Planner for Global Force Management, advising the Chairman of the Joint Chiefs of Staff and the Secretary of Defense on military force allocation matters across the globe. He received a Bachelor of Science in Biology (cum laude) from the University of South Carolina and a Master of Arts (with distinction) in National Security Strategy, with a minor in Leadership and Ethics, from the United States Naval War College. Bryan is currently a Juris Doctor candidate in the part-time evening program at Regent University School of Law in Virginia Beach, where he is a member of the Honors College, has won multiple Book Awards, and was a 2016 scholarship recipient to the VSB Annual Real Estate Practice Seminar.

1 S787 S.E.2d 116 (2016). 2 Va. Code Ann § 8.01-126 3 12 CFR 1024.41 § 1024.41(g)(3)

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found that the foreclosure was not a material breach of the deed of trust, and Fannie Mae was awarded possession of the property.4

The Parrishes appealed de novo to the Circuit Court of Hanover County. Fannie Mae moved for summary judgment arguing that the Circuit Court did not have subject matter jurisdiction to determine the validity of the foreclosure because it was a question of complete title. It is well settled that an appellate Court’s jurisdiction is derived completely from the lower Court’s subject matter jurisdiction. Thus, if the District Court lacked subject matter jurisdiction over a question in the original case, the Appellate Court lacks jurisdiction as well.5 Fannie Mae asserted that because the District Court had no authority to try complete title, the Circuit Court also lacked jurisdiction and must exclude all evidence contesting the validity of the foreclosure. The Circuit Court granted Fannie Mae’s motion for summary judgment.6

The Parrishes appealed to the Supreme Court of Virginia, contending that the Circuit Court erred by granting Fannie Mae’s motion for summary judgment. Fannie Mae again argued that because the General District Court had no jurisdiction to try matters of complete title, the Circuit Court also lacked such jurisdiction. The dispositive issue in the case became the determination of the General District Court’s subject matter jurisdiction in the original unlawful detainer action.

The Supreme Court of Virginia found for the Parrishes. The majority held that because the deed of trust incorporated 12 C.F.R. § 1024.41(g), and Fannie Mae (which was both the lender and the foreclosure purchaser) was aware of the alleged violation, the Parrishes’ allegations of material breach were sufficient to raise a question of complete title. Therefore, the District Court did not have subject matter jurisdiction over the original case. Because subject matter jurisdiction on appeal flows directly from the jurisdiction of the trial Court, the Circuit Court likewise lacked subject matter jurisdiction. The Court held that the Circuit Court’s authority was limited to dismissing the case without prejudice, after which the foreclosure purchaser could refile under the Circuit Court’s original subject matter jurisdiction to try questions of complete title. Accordingly, the Court vacated the judgment of the Circuit Court and dismissed the summons for unlawful detainer.

Noting that unlawful detainer actions often turn on the question of title, the Court said that the District Courts’ lack of jurisdiction to try complete title creates a “conundrum.”7 In its explanation, the Court stated that the question of title is never a factor when a Plaintiff had prior possession of the property and then yielded it to the defendant, as in the case of a landlord-tenant relationship. However, the conundrum arises when a Plaintiff’s claimed right of possession has been acquired after the defendant’s entry onto the property. In this second class of unlawful detainer actions, the Plaintiff’s right of possession depends not on recovering possession, but on claiming possession for the first time. The Court called the determination of the title in such cases a threshold question, because the Plaintiff’s claim is based solely upon the validity of title.8

Analysis

It is well settled that General District Courts lack subject matter jurisdiction to try matters of “complete” title; however District Courts may hear cases which simply “concern” title.

[In 1886 the Supreme Court of Virginia, in Pannill v. Coles, famously articulated the four requisites of complete title. The first and lowest degree is mere possession, without which no title can be complete. The second is the right of possession, which may exist with or without actual possession. The

4 Parrish, at 48. 5 Addison, at 648 6 Parrish, at 48 7 Id. at 49 8 Id. at 51 (footnote 2)

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third requisite is the right of property. The fourth requisite is the combination of the preceding three rights, which forms a complete title.9 This has been the standard to determine complete title in Virginia for over 130 years.]

In Parrish, the Court held that when a question concerning title is raised in the District Court, the Judge must first determine whether the claim is sufficient to raise a bona fide issue of complete title had it been filed in the Circuit Court. If not, the District Court will retain jurisdiction and hear the case. Alternately, if the title claim could withstand demurer in the Circuit Court, the case must be dismissed without prejudice and refiled under the Circuit Court’s original jurisdiction.10 The Court explained that such bona fide title claims may exist in cases of fraud, collusion with the purchaser, foreclosure sales of such gross inadequacy that it shocks the conscience of the Court, or material breach of the deed of trust.11

By contrast, “unlawful detainer” is an action against a defendant who lawfully entered into possession of property, but whose right has expired.12 The Court in Pannill held that an unlawful detainer action resolves only the right of possession, which is just one element of complete title.13 Thus, Pannill made it clear that because unlawful detainer does not require the Court to determine complete title, it is not an action “trying title,” but one merely “concerning title.”

Courts Not of Record, (General District Courts) are limited in their subject matter jurisdiction to that which is explicitly granted by the General Assembly by statute.14 Virginia Code §§ 8.01-126(A) and 16.1-77(3) grant subject matter jurisdiction over unlawful detainer actions to the General District Courts; this does not imply that those courts have authority to determine the complete title to real property. In fact, the Supreme Court of Virginia has expressly held to the contrary.15 However, consistent with Pannill, unlawful detainer actions as described in the Virginia Code concern only the unlawful possession of property, and do not require a determination of complete title. Thus, both under the Pannill analysis and under the Virginia Code, unlawful detainer suits have been considered actions “concerning title,” not cases requiring the Court to try complete title. As such, they have fallen squarely within the District Courts’ jurisdiction.16

Unlawful detainer actions arising from foreclosures will almost always fall into this second category. Foreclosure purchasers will rarely have had prior possession of the property. Instead, the foreclosure purchaser’s right of possession is “based on a claim of legal title, itself based on the trustee’s deed.”17 Thus, the Court reasoned, the question of possession in this category of cases is “inextricably intertwined” with the validity of the title.18

This holding seems to be a change in the way the Court views issues of title. In finding that the District Court lacked jurisdiction over this case, the Court seems to have equated the question of mere possession in an unlawful detainer action with a determination of complete title. In so doing, it may have expanded the traditional understanding of trying title to include areas of the law which have previously

9 Pannill v. Coles, 81 Va. 380, 383-84 (1886). 10 Parrish v. Fannie Mae, 292 Va. 44, 50 (Va. 2016) 11 Id. at 52 12 Parrish, at 50. 13 Id. at 56 14 Addison v. Salyer, 185 Va. 644, 648 (1946) 15 Addison, at 648 16 Parrish, at 57 (McClanahan, E., concurring with the result but dissenting with the analysis) 17 Id. (footnote 3) 18 Id.

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been considered as only “concerning” title. The net result may be that summary judgment in unlawful detainer suits has essentially been made unavailable to foreclosure purchasers, since any legitimate question of title raised by the defense will remove the case from the jurisdiction of the District Court. A foreclosure purchaser might thus be deprived of possession until after she has sought remedy in Circuit Court, while retaining the obligations of ownership (such as the payment of property taxes).19

As Justice Powell stated in her separate opinion, the result in Parrish seems to be inconsistent with the intent of the Legislature. Virginia Code § 8.01-130, which discusses unlawful detainer actions, states, “No judgment in an action brought under the provisions of this article shall bar any action of trespass or ejectment between the same parties, nor shall any such judgment or verdict be conclusive, in any such future action, of the facts therein found.”20 The express language of this statute has, up until now, been interpreted to mean that an unlawful detainer action does not definitively resolve title, but only has the limited effect of deciding who among the parties has the right of possession.21 Taken in conjunction with §§ 8.01-126(A) and 16.1-77(3) which clearly grant General District Courts subject matter jurisdiction over unlawful detainer actions, the General Assembly appears to have intended the General District Courts to have authority to decide these cases. The verdict in Parrish limits the jurisdiction of the District Courts by broadening the traditional understanding of trying title.

19 Id. 20 Va. Code Ann. § 8.01-130 (emphasis added). 21 Parrish, at 65 (Powell, C., concurring with the result but dissenting with the analysis)

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BOARD OF GOVERNORS REAL PROPERTY SECTION

VIRGINIA STATE BAR (2016-2017)

Officers

Chair F. Lewis Biggs, Esquire Kepley Broscious & Biggs, P.L.C. 2211 Pump Road Richmond, VA 23233 (804) 741-0400 (804) 741-6175 (fax) email: [email protected] Term Expires: 2017 (2)

Vice-Chair Whitney Jackson Levin, Esquire Miller Levin, P.C. 11 Terry Court Suite A Staunton, VA 24402-2366 (540) 885-8146 (540) 886-8913 (fax) email: [email protected] Term Expires: 2018 (2)

Secretary/Treasurer †Kay M. Creasman, Esquire Assistant Vice President and Counsel Old Republic National Title Insurance Company 1245 Mall Drive Suite B North Chesterfield, VA 23235 (804) 897-5499 (804) 475-1765 (cell) (804) 897-9679 (fax) email: [email protected] Term Expires: 2019 (2)

Board Members

F. Lewis Biggs, Esquire Kepley Broscious & Biggs, P.L.C. 2211 Pump Road Richmond, VA 23233 (804) 741-0400 (804) 741-6175 (fax) email: [email protected] Term Expires: 2017 (2)

Kathryn N. Byler, Esquire Pender & Coward, P.C. 222 Central Park Avenue Suite 400 Virginia Beach, VA 23462-3026 (757) 490-6292 (747) 490-1914 (fax) email: [email protected] Term Expires: 2017 (1)

†Kay M. Creasman, Esquire Assistant Vice President and Counsel Old Republic National Title Insurance Company 1245 Mall Drive Suite B North Chesterfield, VA 23235 (804) 897-5499 (804) 475-1765 (cell) (804) 897-9679 (fax) email: [email protected] Term Expires: 2019 (2)

Kenneth L. Dickinson, Esquire Stewart Title 1802 Bayberry Court Suite 305 Richmond, VA 23226 (804) 897-0000 (804) 897-0001 (fax) email: [email protected] Term Expires: 2017 (3)

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Rosalie K. Doggett, Esquire TitleSouth 3170 Highway 31S Pelham, AL 35124 (205) 907-5404 (205) 877-6129 (fax) email: [email protected] Term Expires: 2018 (1)

Mark W. Graybeal, Esquire Keegan, DeVol & Clarke, P.L.C. 8133 Leesburg Pike Suite 220 Vienna, VA 22182 (703) 691-1700 (703) 691-3118 (fax) email: [email protected] Term Expires: 2017 (1)

Stephen C. Gregory, Esquire 1334 Morningside Dr. Charleston, WV 25314 (703) 850-1945 (cell) email: [email protected] Term Expires: 2019 (2)

Blake Hegeman, Esquire Shaheen Law Firm, P.C. 8890 Three Chopt Road Richmond, VA 23229 (804) 285-6406 (888) 665-7753 (fax) email: [email protected] Term Expires: 2018 (1)

Whitney Jackson Levin, Esquire Miller Levin, P.C. 11 Terry Court Suite A Staunton, VA 24402-2366 (540) 885-8146 (540) 886-8913 (fax) email: [email protected] Term Expires: 2018 (2)

Lori H. Schweller, Esquire LeClairRyan 123 East Main Street Eighth Floor Charlottesville, VA 22902 (434) 245-3448 (434) 296-0905 (fax) email: [email protected] Term Expires: 2019 (1)

*Susan S. Walker, Esquire Jones, Walker & Lake 128 S. Lynnhaven Road Virginia Beach, VA 23452 (757) 486-0333 (757) 340-8583 (fax) email: [email protected] Term Expires: 2017 (3)

Ronald D. Wiley, Jr., Esquire Underwriting Counsel Old Republic Title 400 Locust Avenue Suite 4 Charlottesville, VA 22902 (804) 281-7497 email: [email protected] Term Expires: 2017 (1)

Ex Officio

Academic Liaison †Lynda L. Butler, Esquire Chancellor Professor of Law William and Mary Law School 613 South Henry Street Williamsburg, VA 23185 or P.O. Box 8795 Williamsburg, VA 23187-8795 (757) 221-3843 (757) 221-3261 (fax) email: [email protected]

VSB Executive Director Karen A. Gould, Esquire Virginia State Bar 1111 East Main Street Suite 700 Richmond, VA 23219-3565 (804) 775-0550 email: [email protected]

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VBA Real Estate Council Chair Maxwell H. Wiegard, Esquire Gentry Locke SunTrust Plaza 10 Franklin Road, S.E. Suite 900 Roanoke, VA 24011 (540) 983-9350 (540) 983-9400 (fax) email: [email protected]

Immediate Past Chair *Susan S. Walker, Esquire Jones, Walker & Lake 128 S. Lynnhaven Road Virginia Beach, VA 23452 (757) 486-0333 (757) 340-8583 (fax) email: [email protected]

Other Liaisons

Virginia CLE Liaison Tracy Winn Banks, Esquire Virginia C.L.E. 105 Whitewood Road Charlottesville, VA 22901 (434) 951-0075 (434) 984-0311 (fax) email: [email protected]

VSB Liaison Dolly C. Shaffner Special Projects Administrative Assistant Virginia State Bar 1111 East Main Street Suite 700 Richmond, VA 23219-3565 (804) 775-0518 (804) 775-0501 (fax) email: [email protected]

____________________ * Past Chair † Courtland Traver Award Recipient *† Past Chair and recipient of the Courtland Traver Award

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AREA REPRESENTATIVES Area Representatives are categorized by six (6) regions: Northern (covering generally Loudoun County in the west to Prince William County in the east); Tidewater (covering generally the coastal jurisdictions from Northumberland County to Chesapeake); Central (covering generally the area east of the Blue Ridge Mountains, south of the Northern region, west of the Tidewater region and north of the Southside region); Southside (covering generally the jurisdictions west of the Tidewater region and south of the Central region which are not a part of the Western region); Valley (covering generally the jurisdictions south of the Northern region, west of the Central region and north of Botetourt County); and Western (covering generally the jurisdictions south of Rockbridge County and west of the Blue Ridge Mountains).

Central Region

Steven W. Blaine, Esquire LeClairRyan, P.C. P.O. Box 2017 123 Main Street 8th Floor Charlottesville, VA 22902-2017 (434) 971-7771 (434) 296-0905 (fax) email: [email protected]

Tara R. Boyd, Esquire Boyd & Sipe, P.L.C. 126 Garrett Street Suite A Charlottesville, VA 22902 (804) 248-8713 email: [email protected]

Richard B. “Rick” Chess, Esquire Chess Law Firm, P.L.C. 2727 Buford Road, Suite D Richmond, VA 23235 (804) 241-9999 (cell) (866) 596-9908 (fax) email: [email protected]

Connor J. Childress, Esquire Scott Kroner, P.L.C. 418 E. Water Street Charlottesville, VA 22902 (434) 296-2161 email: [email protected]

*†Douglass W. Dewing, Esquire P.O. Box 38037 Henrico, VA 23231 (804) 795-1209 email: [email protected]

Michele R. Freemyers, Esq. Leggett, Simon, Freemyers & Lyon, PLC Counsel to: Ekko Title, L.C. 1931 Plank Road, Suite 208 Fredericksburg, VA 22401 (540) 899-1992 email: [email protected]

Barbara Wright Goshorn, Esquire Barbara Wright Goshorn, P.C. 203 Main Street P.O. Box 177 Palmyra, VA 22963 (434) 589-2694 (434) 589-6262 (fax) email: [email protected]

Garland Gray, III, Esquire 4215 W. Franklin St. Apartment A Richmond, VA 23221 (757) 880-2370 email: [email protected]

*J. Philip Hart, Esquire Vice President & Investment Counsel Legal Department Genworth Financial, Inc. 6620 West Broad Street Building #1 Richmond, VA 23230 (804) 922-5161 (804) 662-2596 (fax) email: [email protected]

*Randy C. Howard, Esquire 11437 Barrington Bridge Ct. Richmond, VA 23233 (804) 337-1878 (cell) email: [email protected]


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Paul D. Jay, Esquire Hunton & Williams LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, VA 23219 (804) 787-8028 email: [email protected]

*Neil S. Kessler, Esquire Troutman Sanders, L.L.P. P.O. Box 1122 Richmond, VA 23218-1122 (804) 697-1450 (804) 698-6002 (fax) email: [email protected]

Otto W. Konrad, Esquire Williams Mullen 200 South 10th Street Suite 1600 Richmond, VA 23219 (804) 420-6093 (804) 420-6507 (fax) email: [email protected]

Michael P. Lafayette, Esquire Lafayette, Ayers & Whitlock, PLC 10160 Staples Mill Road, Suite 105 Glen Allen, VA 23060 (804) 545-6250 (main) (804) 545-6253 (direct) (804) 545-6259 (fax) email: [email protected]

*†Larry J. McElwain, Esquire Scott Kroner, PLC 418 East Water Street Charlottesville, VA 22902-2737 (434) 296-2161 (434) 293-2073 (fax) email: [email protected]

*†C. Grice McMullan, Jr., Esquire Thompson & McMullan, P.C. 100 Shockhoe Slip 3rd Floor Richmond, VA 23219-4140 (804) 698-6203 (804) 780-1813 (fax) email: [email protected]

Hope V. Payne, Esquire Scott Kroner, PLC 418 East Water Street Charlottesville, VA 22902-2737 (434) 296-2161 (434) 293-2073 (fax) email: [email protected]

Louis J. Rogers, Esquire Louis J. Rogers & Associates, P.C. 10900 Nuckols Road Suite 200 Glen Allen, VA 23060 (804) 290-7900 (804) 290-0086 (fax) email: [email protected]

Collison F. Royer, Esquire Royer Caramanis & McDonough 200-C Garrett Street Charlottesville, VA 22902 (434) 260-8767 (434) 710-4061 (fax) email: [email protected]

Lori H. Schweller, Esquire LeClairRyan 123 East Main Street Eighth Floor Charlottesville, VA 22902 (434) 245-3448 (434) 296-0905 (fax) email: [email protected]

*Susan H. Siegfried, Esquire 5701 Sandstone Ridge Terrace Midlothian, VA 23112 (804) 739-8853 email: [email protected]

John W. Steele, Esquire Hirschler & Fleischer Federal Reserve Bank Building 701 East Byrd Street Richmond, VA 23219 or P. O. Box 500 Richmond, VA 23218-0500 (804) 771-9565 (804) 644-0957 (fax) email: [email protected]


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Stephen B. Wood, Esquire Bierman, Geesing & Ward, L.L.C. 81200 Three Chopt Road Room 240 Richmond, VA 23229-4833 (804) 282-0463 (804) 282-0541 (fax) email: [email protected]

J. Page Williams, Esquire Lenhart Pettit P.C. 530 East Main Street P.O. Box 2057 Charlottesville, VA 22902-2057 (434) 817-7973 (434) 977-5109 (fax) email: [email protected]

Northern Region

*Paul A. Bellegarde, Esquire 8284 Spring Leaf Court Vienna, VA 22182 (301) 537-0627 (cell) (703) 749-8306 (fax) email: [email protected]

Dianne Boyle, Esquire Chicago Title Insurance Company 2000 M Street, NW Suite 610 Washington, D.C. 20036 (202) 263-4745 (202) 955-5769 (fax) email: [email protected]

Todd E. Condron, Esquire Ekko Title 410 Pine Street, SE Suite 220 Vienna, VA 22180 (703) 537-0800 (888) 448-3556 (fax) email: [email protected]

Lawrence A. Daughtrey, Esquire Kelly & Daughtrey 10605 Judicial Drive Suite A-3 Fairfax, VA 22030 (703) 273-1950 (703) 359-5198 (fax) email: [email protected]

Pamela B. Fairchild, Esquire Attorney at Law Fairchild Law 9501 Ferry Harbour Court Alexandria, VA 22309 (703) 623-9395 (cell) email: [email protected]

Jack C. Hanssen, Esquire Moyes & Associates, P.L.L.C. 21 North King Street Leesburg, VA 20176-2819 (703) 777-6800 (703) 777-9886 (fax) email: [email protected]

George A. Hawkins, Esquire Dunlap Bennett & Ludwig 8300 Boone Boulevard, #550 Vienna, VA 22182 (703) 777-7319 (main) (571) 252-8521 (direct) (703) 777-3656 (fax) email: [email protected]

John H. Hawthorne, Esquire Protorae Law, P.L.L.C. 8075 Leesburg Pike Suite 760 Tysons, VA 22181 (703) 942-6147 (703) 942-6758 (fax) email: [email protected]

Benjamin D. Leigh, Esquire Atwill, Troxell & Leigh, PC 50 Catoctin Circle NE, Ste. 303 Leesburg, VA 20176 (703) 777-4000 (703) 777-4001 (fax) email: [email protected]

*Paul H. Melnick, Esquire Pesner Kawamoto 7926 Jones Branch Drive, Suite 930 Tysons Corner, VA 22102 (703) 506-9440 (703) 506-0929 (fax) email: [email protected]




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Andrew A. Painter, Esquire Walsh Colucci Lubeley & Walsh PC One East Market Street Suite 300 Leesburg, VA 20176-3014 (703) 737-3633 ext. 5775 (703) 737-3632 (fax) email: [email protected]

*†Susan M. Pesner, Esquire Pesner Kawamoto, P.L.C. 7926 Jones Branch Drive Suite 930 McLean, VA 22102-3303 (703) 506-9440 (703) 506-0929 (fax) email: [email protected]

Sarah Louppe Petcher, Esquire General Counsel Northern Virginia Association of Realtors® 6641 Locust Street Falls Church, VA 22046 (703) 207-3200 (703) 207-3277 (fax) email: [email protected]

Michelle A. Rosati, Esquire Holland & Knight 1650 Tysons Boulevard Suite 1700 Tysons, VA 22102 (703) 720-8079 (703) 720-8610 (fax) email: [email protected]

Jordan M. Samuel, Esquire Asmar, Schor & McKenna, P.L.L.C. 5335 Wisconsin Avenue, N.W. Suite 400 Washington, D.C. 20015 (202) 244-4264 (202) 686-3567 (fax) email: [email protected]

*Lawrence M. Schonberger, Esquire Sevila, Saunders, Huddleston & White, P.C. 30 North King Street Leesburg, VA 20176 (703) 777-5700 (703) 771-4161 (fax) email: [email protected]

David W. Stroh, Esquire 2204 Golf Course Drive Reston, VA 20191 (703) 716-4573 email: [email protected]

†Lucia Anna Trigiani, Esquire MercerTrigiani 112 South Alfred Street Alexandria, VA 22314 (703) 837-5000 (703) 837-5008 (direct) (703) 837-5001 (fax) (703) 835-5018 (direct fax) email: [email protected]

Benjamin C. Winn, Jr., Esquire PLC Independent Counsel 3701 Pender Drive, #300 Fairfax, VA 22030 (703) 652-9719 email: [email protected]

Eric V. Zimmerman, Esquire Rogan Miller Zimmerman, P.L.L.C. 50 Catoctin Circle, NE Suite 333 Leesburg, VA 20176 (703) 777-8850 (703) 777-8854 (fax) email: [email protected]

Southside Region

Robert E. Hawthorne, Jr., Esquire Hawthorne & Hawthorne 1805 Main Street P. O. Box 931 Victoria, VA 23974 (434) 696-2139 (434) 696-2537 (fax) email: [email protected]

Thomson Lipscomb Attorney at Law 89 Bank Street P. O. Box 310 Boydton, VA 23917 (434) 738-0440 (434) 738-0444 (fax) email: [email protected]


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Tidewater Region

Ali T. Anwar Kase & Associates, P.C. 200 Bendix Road Suite 150 Virginia Beach, VA 23452 (703) 385-9875 ext. 474 (main) (703) 385-3170 (direct) (703) 544-0103 (fax) email: [email protected]

Robert C. Barclay, IV, Esquire Cooper, Spong & Davis, P.C. P.O. Box 1475 Portsmouth, VA 23705 (757) 397-3481 (757) 391-3159 (fax) email: [email protected]

*Michael E. Barney, Esquire Kaufman & Canoles, P.C P.O. Box 626 Virginia Beach, VA 23451-0626 (757) 491-4040 (757) 491-4020 (fax) email: [email protected]

*†Paula S. Caplinger, Esquire Vice President and Tidewater Agency Counsel Chicago Title Insurance Company Fidelity National Title Group P.O. Box 6500 Newport News, VA 23606 (757) 508-8889 (757) 277-0204 (fax) email: [email protected]

Karen L. Cohen, Esquire Vanderpool, Frostick & Nishanian, P.C. 9200 Church Street, Suite 400 Manassas, VA 20110 (703) 369-4738 (703) 369-3653 (fax) email: [email protected]

Kathy Tyree Crain, Esquire Samuel I. White, P.C. Suite 120 5040 Corporate Woods Drive Virginia Beach, VA 23462-4377 (757) 490-9284 email: [email protected]

Brian O. Dolan, Esquire Brian Dolan Law Offices, PLLC 12610 Patrick Henry Drive, Ste. C Newport News, VA 23602 (757) 320-0257 (757) 687-0741 (fax) email: [email protected]

Alyssa C. Embree, Esquire Williams Mullen 999 Waterside Drive Suite 1700 Norfolk, VA 23510 (757) 629-0631 (757) 629-0660 (fax) email: [email protected]

*†Howard E. Gordon, Esquire Williams Mullen 999 Waterside Drive Suite 1700 Norfolk, VA 23510 (757) 629-0607 (757) 629-0660 (fax) email: [email protected]

Ann A. Gourdine, Esquire 115 High Street Portsmouth, VA 23704 (757) 397-6000 (757) 399-1055 (fax) email: [email protected]

Naveed Kalantar, Esquire Pender & Coward, P.C. 117 Market Street Suffolk, VA 23434 (757) 490-6251 (757) 502-7389 (fax) email: [email protected]

Ray W. King, Esquire LeClairRyan, P.C. 999 Waterside Drive Suite 2100 Norfolk, VA 23510 (757) 624-1454 (main) (757) 441-8929 (direct) (757) 624-3773 (fax) email: [email protected]



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*Charles (Chip) E. Land, Esquire Kaufman & Canoles, P.C. P.O. Box 3037 Norfolk, VA 23514-3037 (757) 624-3131 (757) 624-3169 (fax) email: [email protected]

*Charles M. Lollar, Esquire Lollar Law, P.L.L.C. Virginia Bar No. 17009 North Carolina Bar No. 7861 P. O. Box 11274 Norfolk, VA 23517 (757) 644-4657 (office) (757) 735-0777 (mobile) (757) 644-4659 (fax) email: [email protected]

Christina E. Meier, Esquire Christina E. Meier, P.C. 4768 Euclid Road Suite 102 Virginia Beach, VA 23462 (757) 313-1161 (757) 313-1162 (fax) email: [email protected]

*Jean D. Mumm, Esquire LeClairRyan, P.C. 999 Waterside Drive Suite 2100 Norfolk, VA 23510 (757) 441-8916 (direct) (757) 681-5302 (cell) (757) 624-3773 (fax) email: [email protected]

Christy L. Murphy, Esquire Kaufman & Canoles, P.C. 150 West Main Street, Suite 2100 Post Office Box 3037 Norfolk, VA 23514 (757) 624-3177 (888) 360-9092 (fax) email: [email protected]

Cynthia A. Nahorney, Esquire Fidelity National Title Insurance Corporation Commonwealth Land Title Insurance Company 150 West Main Street Suite 1615 Norfolk, VA 23510 (757) 216-0491 (757) 497-1653 (fax) email: [email protected]

William L. Nusbaum, Esquire WilliamsMullen 1700 Dominion Tower 999 Waterside Drive Norfolk, VA 23510-3303 (757) 629-0612 (757) 629-0660 (fax) email: [email protected]

Harry R. Purkey, Jr., Esquire 303 34th Street Suite 5 Virginia Beach, VA 23451 (757) 428-6443 (757) 428-3338 (fax) email: [email protected]

Cartwright R. “Cart” Reilly, Esquire Williams Mullen 222 Central Park Ave. Suite 1700 Virginia Beach, VA 23462 (757) 473-5312 (757) 473-0395 (fax) email: [email protected]

*Stephen R. Romine, Esquire LeClairRyan, P.C. 999 Waterside Drive Suite 2100 Norfolk, VA 23510 (757) 624-1454 (main) (757) 441-8921 (direct) (757) 441-8971 (fax) email: [email protected]

William W. Sleeth, III, Esquire LeClairRyan, P.C. 5388 Discovery Park Boulevard 3rd Floor Williamsburg, VA 23188 (757) 941-2821 (757) 941-2879 (fax) email: [email protected]

Allen C. Tanner, Jr., Esquire 701 Town Center Drive Suite 800 Newport News, VA 23606 (757) 595-9000 (757) 873-8103 (fax) email: [email protected]

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Andrae J. Via, Esquire Senior Corporate Counsel Ferguson Enterprises, Inc. 12500 Jefferson Avenue Newport News, VA 23602 (757) 969-4170 (757) 989-2613 (fax) email: [email protected]

†Edward R. Waugaman, Esquire 1114 Patrick Lane Newport News, VA 23608 (757) 897-6581 email: [email protected]

Mark D. Williamson, Esquire McGuireWoods, L.L.P. World Trade Center Suite 9000 101 W. Main Street Norfolk, VA 23510 (757) 640-3713 email: [email protected]

Valley Region

K. Wayne Glass, Esquire Vellines, Cobbs, Goodwin & Glass P.O. Box 235 Staunton, VA 24402-0235 (540) 885-1205 (540) 885-7599 (fax) email: [email protected]

James L. Johnson, Esquire Wharton Aldhizer & Weaver, P.L.C. 100 South Mason Street P.O. Box 20028 Harrisonburg, VA 22801 (540) 434-0316 (540) 434-5502 (fax) email: [email protected]

Paul J. Neal, Esquire 122 West High Street Woodstock, VA 22664 (540) 459-4041 (540) 459-3398 (fax) email: [email protected]

Mark N. Reed, Esquire Reed & Reed, P.C. 16 S. Court Street P.O. Box 766 Luray, VA 22835 (540) 743-5119 (540) 743-4806 (fax) email: [email protected]

Western Region

*†David C. Helscher, Esquire Osterhoudt, Prillaman, Natt, Helscher, Yost, Maxwell & Ferguson, P.L.C. 3140 Chaparral Drive Suite 200 C Roanoke, VA 24018 (540) 725-8182 (540) 772-0126 (fax) email: [email protected]

Maxwell H. Wiegard, Esquire Gentry Locke SunTrust Plaza 10 Franklin Road, S.E. Suite 900 Roanoke, VA 24011 (540) 983-9350 (540) 983-9400 (fax) email: [email protected]

*C. Cooper Youell, IV, Esquire Whitlow & Youell, P.L.C. 28A West Kirk Avenue Roanoke, VA 24011 (540) 904-7836 (540) 684-7836 (fax) email: [email protected]


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Honorary Area Representatives (Inactive)

*Joseph M. Cochran, Esquire 177 Oak Hill Circle Sewanee, TN 37375

*Robert E. Hawthorne, Esquire Hawthorne & Hawthorne P.O. Box 603 Kenbridge, VA 23944 (434) 676-3275 (434) 676-2286 (fax) (Kenbridge Office) (434) 696-2139 (434) 696-2537 (fax) (Victoria Office) email: [email protected]

*Edward B. Kidd, Esquire Troutman Sanders Building 1001 Haxall Point Richmond, VA 23219 (804) 697-1445 (804) 697-1339 (fax) email: [email protected]

*James B. (J.B.) Lonergan, Esquire Pender & Coward, P.C. 222 Central Park Avenue Virginia Beach, VA 23462 (757) 490-6281 (757) 497-1914 (fax) email: [email protected]

*Michael M. Mannix, Esquire Holland & Knight, L.L.P. Suite 700 1600 Tysons Boulevard McLean, VA 22102 (703) 720-8024 email: [email protected]

*R. Hunter Manson, Esquire R. Hunter Manson, P.L.C. P.O. Box 539 Reedville, VA 22539 (804) 453-5600 (804) 453-7055 (fax)

*G. Michael Pace, Jr., Esquire General Counsel Roanoke College Office of the President 221 College Lane Salem, VA 24153 (540) 375-2047 (540) 375-2085 (fax) email: [email protected]

*†Joseph W. Richmond, Jr., Esquire McCallum & Kudravetz, P.C. 250 East High Street Charlottesville, VA 22902 (434) 293-8191 (main) (434) 220-5999 (direct) (434) 296-0025 (fax) email: [email protected]

*Michael K. Smeltzer, Esquire Woods, Rogers & Hazlegrove, L.C. P.O. Box 14125 Roanoke, VA 24038 (540) 983-7652 (540) 983-7711 (fax) email: [email protected]

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COMMITTEE CHAIRPERSONS AND OTHER SECTION CONTACTS COMMITTEE CHAIRPERSONS

Standing Committees

FEE SIMPLE Chair Stephen C. Gregory, Esquire 1334 Morningside Dr. Charleston, WV. 25314 (703) 850-1945 (cell) email: [email protected] Publication Committee members: Karen L. Day, Esquire

*†Douglass W. Dewing, Esquire Michael P. Lovell, Esquire Michelle A. Rosati, Esquire †Lucia Anna Trigiani, Esquire

Membership Chair Ronald D. Wiley, Jr., Esquire Underwriting Counsel Old Republic Title 400 Locust Avenue Suite 4 Charlottesville, VA 22902 (804) 281-7497 email: [email protected] Committee members: F. Lewis Biggs, Esquire

Pamela B. Fairchild, Esquire

*J. Philip Hart, Esquire

*Randy C. Howard, Esquire *†Larry J. McElwain, Esquire Harry R. Purkey, Jr., Esquire *Susan H. Siegfried, Esquire

Programs Co-Chairs *†Paula S. Caplinger, Esquire Vice President and Tidewater Agency Counsel Chicago Title Insurance Company Fidelity National Title Group P.O. Box 6500 Newport News, VA 23606 (757) 508-8889 (757) 277-0204 (fax) email: [email protected] Blake Hegeman, Esquire Shaheen Law Firm, P.C. 8890 Three Chopt Road Richmond, VA 23229 (804) 285-6406 (888) 665-7753 (fax) email: [email protected] Committee members: †Kay M. Creasman, Esquire

*Neil S. Kessler, Esquire *Jean D. Mumm, Esquire Sarah Louppe Petcher, Esquire Lori H. Schweller, Esquire †Edward R. Waugaman, Esquire

Technology Chair Mark W. Graybeal, Esquire Keegan, DeVol & Clarke, P.L.C. 8133 Leesburg Pike Suite 220 Vienna, VA 22182 703-691-1700 (703) 691-3118 (fax) email: [email protected] Committee members: F. Lewis Biggs, Esquire *†Douglass W. Dewing, Esquire

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Substantive Committees

Commercial Real Estate

Chair Richard B. “Rick” Chess, Esquire Chess Law Firm, P.L.C. 2727 Buford Road, Suite D Richmond, VA 23235 (804) 241-9999 (cell) (866) 596-9908 (fax) email: [email protected] Committee members: *Michael E. Barney, Esquire Dianne Boyle, Esquire Connor J. Childress, Esquire Robert Deal, Esquire *†Douglass W. Dewing, Esquire Alyson Harter, Esquire John H. Hawthorne, Esquire

*Randy C. Howard, Esquire Paul D. Jay, Esquire Benjamin D. Leigh, Esquire Whitney Jackson Levin, Esquire *C. Grice McMullan, Jr., Esquire David Miller, Esquire *Jean D. Mumm, Esquire *William L. Nusbaum, Esquire *Stephen R. Romine, Esquire J. Page Williams, Esquire *C. Cooper Youell, IV, Esquire

Common Interest Community Chair Jeremy R. Moss, Esquire, CCAL® Vandeventer Black LLP 101 West Main Street 500 World Trade Center Norfolk, VA 23510 (757) 446-8522 (757) 446-8670 (fax) email: [email protected] Committee members: John C. Cowherd, Esquire

*†David C. Helscher, Esquire Michael A. Inman, Esquire, CCAL® Harry R. Purkey, Jr., Esquire William W. Sleeth, III, Esquire Susan B. Tarley, Esquire, CCAL®

Creditors’ Rights and Bankruptcy Chair F. Lewis Biggs, Esquire Kepley Broscious & Biggs, P.L.C. 2211 Pump Road Richmond, VA 23233 (804) 741-0400 ext. 203 (804) 740-6175 (fax) email: [email protected] Committee members: Paula S. Beran, Esquire

Paul K. Campsen, Esquire Brian O. Dolan, Esquire *J. Philip Hart, Esquire Hannah W. Hutman, Esquire John H. Maddock, III, Esquire Richard C. Maxwell, Esquire Christy L. Murphy, Esquire

Lynn L. Tavenner, Esquire Stephen B. Wood, Esquire

Peter G. Zemanian, Esquire

Eminent Domain

Chair *Charles M. Lollar, Esquire Lollar Law, PLLC Virginia Bar No. 17009 North Carolina Bar No. 7861 P. O. Box 11274 Norfolk, VA 23517 (757) 735-0777 email: [email protected] Committee members:

Edmund M. Amorosi, Esquire Matthew D. Fender, Esquire David L. Arnold, Esquire Gifford R. Hampshire, Esquire Nancy C. Auth, Esquire Jeremy Hopkins, Esquire Josh E. Baker, Esquire Henry E. Howell, Esquire James E. Barnett, Esquire Thomas M. Jackson, Jr., Esquire Stanley G. Barr, Esquire James W. Jones, Esquire Robert J. Beagan, Esquire James J. Knicely, Esquire Barbara H. Breeden, Esquire Brian G. Kunze, Esquire James C. Breeden, Esquire Steven L. Micas, Esquire †Lynda L. Butler, Esquire Michael E. Ornoff, Esquire Michael S. J. Chernau, Esquire Sharon E. Pandak, Esquire Francis A. Cherry, Jr., Esquire Rebecca B. Randolph, Esquire Stephen J. Clarke, Esquire Kelly L. Daniels Sheeran, Esquire Charles R. Cranwell, Esquire Mark A. Short, Esquire Christianna Dougherty-Cunningham, Esquire

Bruce R. Smith, Esquire Rhysa G. South, Esquire

Joseph M. DuRant, Esquire Paul B. Terpak, Esquire Lawrence S. Emmert, Esquire Joseph T. Waldo, Esquire Jerry K. Emrich, Esquire Scott Alan Weible, Esquire

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Ethics

Chair †Edward R. Waugaman, Esquire 1114 Patrick Lane Newport News, VA 23608 (757) 897-6581 email: [email protected] Committee members: David B. Bullington, Esquire Todd E. Condron, Esquire †Kay M. Creasman, Esquire Lawrence A. Daughtrey, Esquire James M. McCauley, Esquire Christina E. Meier, Esquire *†Susan M. Pesner, Esquire *Lawrence M. Schonberger, Esquire J. Page Williams, Esquire Eric V. Zimmerman, Esquire

Land Use and Environmental Chair Lori H. Schweller, Esquire LeClairRyan 123 East Main Street Eighth Floor Charlottesville, VA 22902 (434) 245-3448 (434) 296-0905 (fax) email: [email protected] Committee members: Alan D. Albert, Esquire *Michael E. Barney, Esquire

Karen L. Cohen, Esquire Joshua Johnson, Esquire

Preston Lloyd, Esquire John M. Mercer, Esquire Lisa M. Murphy, Esquire

Andrew A. Painter, Esquire *Stephen R. Romine, Esquire

Jonathan Stone, Esquire Maxwell H. Wiegard, Esquire

Residential Real Estate Co-Chairs Christina E. Meier, Esquire Christina E. Meier, P.C. 4768 Euclid Road Suite 102 Virginia Beach, VA 23462 (757) 313-1161 (757) 313-1162 (fax) email: [email protected] *Susan S. Walker, Esquire Jones, Walker & Lake 128 S. Lynnhaven Road Virginia Beach, VA 23452 (757) 486-0333 (757) 340-8583 (fax) email: [email protected] Committee members: David B. Bullington , Esquire Todd E. Condron, Esquire †Kay M. Creasman, Esquire Pamela B. Fairchild, Esquire Michele R. Freemyers, Esquire Barbara Wright Goshorn, Esquire Mark W. Graybeal, Esquire George A. Hawkins, Esquire *†David C. Helscher, Esquire Michael P. Lafayette, Esquire Thomson Lipscomb, Esquire

*Paul H. Melnick, Esquire Hope V. Payne, Esquire Karen W. Ramey, Esquire

Mark N. Reed, Esquire Trevor B. Reid, Esquire Collison F. Royer, Esquire Jordon M. Samuel, Esquire Allen C. Tanner, Jr., Esquire Ronald D. Wiley, Jr., Esquire Benjamin C. Winn, Jr., Esquire Eric V. Zimmerman, Esquire

Title Insurance Chair Ali T. Anwar Kase & Associates, P.C. 200 Bendix Road Suite 150 Virginia Beach, VA 23452 (703) 385-9875 ext. 474 (main) (703) 385-3170 (direct) (703) 544-0103 (fax) email: [email protected] Committee members: *Michael E. Barney, Esquire

Tara R. Boyd, Esquire *†Paula S. Caplinger, Esquire Kathy T. Crain, Esquire *Kay M. Creasman, Esquire Kenneth L. Dickinson, Esquire Rosalie K. Doggett, Esquire Brian O. Dolan, Esquire Stephen C. Gregory, Esquire T. Adam Gregory, Esquire

*Randy C. Howard, Esquire Paul D. Jay, Esquire James L. Johnson, Esquire Thomson Lipscomb, Esquire Christy L. Murphy, Esquire Cynthia A. Nahorney, Esquire Karen W. Ramey, Esquire †Edward R. Waugaman, Esquire Ronald D. Wiley, Jr., Esquire Benjamin C. Winn, Jr., Esquire

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Section Contact

Liaison to Bar Counsel Vacant

NEWSCriminal Law FIRST CLASS

U.S. POSTAGEPAID

PERMIT NO. 709RICHMONDVirginia State Bar

1111 eaSt Main Street, Suite 700richMond, Virginia 23219-3565

Virginia State Bar Criminal Law SectionBoard of Governors 2010-2011

Elizabeth L. Keller, Staff Liaison

Newsletter Editor: Professor Ronald J. Bacigal, University of Richmond School of Law

www.vsb.org/site/sections/criminal

StatEmENtS oR ExPRESSioNS of oPiNioN oR commENtS aPPEaRiNg hEREiN aRE thoSE of thE EditoRS aNd coNtRiBUtoRS aNd Not NEcESSaRiLy thoSE of thE StatE BaR oR SEctioN.

hon. dennis W. dohnal, Ex-Officio, Judicialhon. charles S. Sharp, Ex-Officio, Judicial

hon. ashley K. tunner, Ex-Officio, Judicialhon. James S. yoffy, Ex-Officio, Judicial

Joel R. BranscomJames a. Bullard, Jr.claire g. cardwell

Linda d. curtisdavid J. damico

francis mcQ. Lawrence

andrea L. moseleyJeffrey a. Swartz

Reno S. harp, iii, Ex Officiohon. Neil h. macBride, Ex Officio U.S. attorney, Eastern district of Virginia

carolyn V. grady, Chaircasey R. Stevens, Vice Chair

Lisa K. caruso, SecretaryRichard E. trodden Immediate Past Chair

Francis McQ. Lawrence, ChairJoel R. Branscom, Vice ChairAndrea L. Moseley, Secretary

Lisa K. Caruso Immediate Past Chair

Melissa H. HoyManuel E. Leiva, Jr.

Colette Wallace McEachinRobert G. MorecockElizabeth P. Murtagh

Nancy G. ParrTheo K. Stamos

Esther J. WindmuellerS. Eugene Fishel IV, Ex Officio Reno S. Harp, III, Ex Officio

Hon. Timothy J. Heaphy,U.S. Attorney,

Western District of Virginia


Hon. Rufus A. Banks, Jr., Ex-Officio, Judicial Hon. Ivan D. Davis, Ex-Officio, Judicial

Hon. Steven C. Frucci, Ex Officio, JudicialHon. Charles S. Sharp, Ex Officio, Judicial


NEWSCriminal Law FIRST CLASS

U.S. POSTAGEPAID

PERMIT NO. 709RICHMONDVirginia State Bar

1111 eaSt Main Street, Suite 700richMond, Virginia 23219-3565



Newsletter Editor: Professor Ronald J. Bacigal, University of Richmond School of Law

www.vsb.org/site/sections/criminal

StatEmENtS oR ExPRESSioNS of oPiNioN oR commENtS aPPEaRiNg hEREiN aRE thoSE of thE EditoRS aNd coNtRiBUtoRS aNd Not NEcESSaRiLy thoSE of thE StatE BaR oR SEctioN.

hon. dennis W. dohnal, Ex-Officio, Judicialhon. charles S. Sharp, Ex-Officio, Judicial

hon. ashley K. tunner, Ex-Officio, Judicialhon. James S. yoffy, Ex-Officio, Judicial

Joel R. BranscomJames a. Bullard, Jr.claire g. cardwell

Linda d. curtisdavid J. damico

francis mcQ. Lawrence

andrea L. moseleyJeffrey a. Swartz

Reno S. harp, iii, Ex Officiohon. Neil h. macBride, Ex Officio U.S. attorney, Eastern district of Virginia

carolyn V. grady, Chaircasey R. Stevens, Vice Chair

Lisa K. caruso, SecretaryRichard E. trodden Immediate Past Chair

Francis McQ. Lawrence, ChairJoel R. Branscom, Vice ChairAndrea L. Moseley, Secretary

Lisa K. Caruso Immediate Past Chair

Melissa H. HoyManuel E. Leiva, Jr.

Colette Wallace McEachinRobert G. MorecockElizabeth P. Murtagh

Nancy G. ParrTheo K. Stamos

Esther J. WindmuellerS. Eugene Fishel IV, Ex Officio Reno S. Harp, III, Ex Officio

Hon. Timothy J. Heaphy,U.S. Attorney,

Western District of Virginia


Hon. Rufus A. Banks, Jr., Ex-Officio, Judicial Hon. Ivan D. Davis, Ex-Officio, Judicial

Hon. Steven C. Frucci, Ex Officio, JudicialHon. Charles S. Sharp, Ex Officio, Judicial


Documents

the FEE Simple - The Journal of the Virginia State Bar ... · grew into the 21st Annual Advanced Real Estate Seminar held this past March in Williamsburg. ... in turn, allow attendees